Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Sulski, Judge, presiding.
PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant, Elijah Daniels, was found guilty of attempted rape (Ill. Rev. Stat. 1981, ch. 38, par. 8-4) and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10-3). The trial court held that the charges merged and defendant was sentenced to five years' imprisonment for attempted rape. Defendant raises a single issue for review: whether he was proved guilty beyond a reasonable doubt. We affirm.
The following facts were adduced at trial. The complaining witness, a 16-year-old girl, testified that around 10 p.m. on October 18, 1982, she was at Pete's Store (Pete's), a video game room located at 3836 West Chicago Avenue. After leaving Pete's, she walked across the street to a store to buy some popcorn. Defendant, who was with a man known to the witness only as Anthony, spoke to her as she crossed the street. Defendant again spoke to her after she left the store but she did not know what he had said. As she crossed the street, defendant approached her. He was alone. He asked her to go with him, saying he would give her some money if she did so. Complainant replied that she would not go with him. Defendant again asked her to go with him and complainant again refused. At this point, defendant grabbed her right arm tightly, told her to walk with him and not to run, or he would kill her. He then forcibly walked the complainant to a nearby apartment building near the intersection of Chicago and Avers avenues. When defendant opened the door of the building, a woman later identified as defendant's mother, Willie Mae Daniels, was standing inside. Complainant started to tell defendant's mother that defendant had forced her there, but defendant pulled her down the stairs into the basement before she could finish.
Once they were in the basement, defendant took her into a small room which looked like a bedroom. He threw two $5 bills in her face. She let them fall to the floor. Defendant told her he would "get his money back and some pussy too." He then ordered her to take her clothes off. When she refused, defendant again threatened to kill her. Defendant removed his belt, holding the buckle in his hands as if preparing to strike complainant with it. Once more he told her to take her clothes off and once more she refused. Defendant choked her, telling her, "Get in bed. You are going to give me some." He then told her she could not leave until she gave him what he wanted. He choked her a second time and threw her on the bed. After throwing her on the bed, defendant touched her thighs and ripped her sweat shirt while trying to pull it up. Complainant screamed. A man later stipulated to be defendant's brother, David Daniels, came downstairs and told the defendant to stop what he was doing, to which defendant replied that it was none of his business. The two men argued, and Daniels allowed complainant to leave. On her way out, she threatened to call the police. Defendant's mother then attempted to pull her back into the apartment, but Daniels told her to let go of complainant and that defendant deserved it if the police were called. Complainant then ran to Pete's and told the owner, Pete Nichols, that defendant had tried to rape her. She telephoned the police, who arrived a short time later.
Complainant further testified that one evening a few days later, defendant's mother and an older man approached her two or three times offering her $15 or $20 to drop the charges against the defendant. Initially she refused. Defendant's mother then asked her to write a note stating that she would not press charges. Because the two had been following her that evening frightening her, complainant agreed to write the note but did not accept the money that was offered.
During cross-examination, complainant testified that she did not know the defendant but had seen him in the area. In contrast to an earlier statement that defendant spoke to her before she entered the store to buy popcorn, complainant stated that defendant spoke with her after she left the store. She did not want to go with the defendant but did not scream or tell anyone that she was being forced off of the street. After defendant had taken her to the basement, she screamed when he choked her. She did not scream again after he stopped choking her because she was afraid he would hit her with the belt buckle he was holding. Defendant, however, did not strike her with the belt buckle. Later, she noticed that her neck was swollen.
Complainant further testified on cross-examination that defendant never tried to remove her pants or any undergarments. When questioned regarding an earlier statement given at a preliminary hearing that she was in the building from 10 p.m. until shortly after 11 p.m., complainant stated that she was unable to recall how long she had been in the apartment. The witness denied agreeing to have sex with the defendant for $10 and that defendant could not complete the act and wanted his money back. Complainant denied that she gave defendant $5 back, that he took the other $5, and that she became angry over this. She further denied that she told defendant's mother that nothing had happened. Although she was not threatened into signing the note, complainant signed it because she was scared. Complainant had never had sexual relations with the defendant, and had never taken any money from him.
On redirect examination, complainant testified that she left Pete's at 10 p.m. and that when the police arrived it was around 11:30 p.m. Defendant's age was stipulated to be 27 years.
Pete Nichols, the owner of Pete's Store, testified that at 11:30 p.m. on October 18, 1982, the complainant entered his store looking hysterical and as though she was about to cry. She asked him if she could use the phone. When he asked what had happened, she told him that defendant had tried to rape her. Nichols stated he had known complainant for three or four years and that her reputation in the community was good. His nephew is complainant's boyfriend. On cross-examination, the witness stated that complainant frequents his game room at least four times a week. She stays until 10 p.m., when he requests that his younger patrons leave.
Ronald Smith, testifying on defendant's behalf, stated that he owns Ron's Liquors at 3846 West Chicago Avenue. He observed the complainant, defendant's mother and brother, Roy Stevenson, together in his bar in October of 1982. Defendant's mother asked him to change a $20 bill. After receiving her change, she gave complainant some money. Smith did not hear any conversation. The three then left the bar. Smith is not related to any of the three but has seen all of them in the area. Complainant often stops in to buy potato chips and pop.
On cross-examination, Smith testified that he has known defendant's mother for 10 years and likes and respects her. Stevenson frequents his tavern almost daily. Last year, he barred the defendant from his tavern.
Anthony French, a good friend of the defendant, stated that he was with the defendant all day on October 18, 1982. He and the defendant saw the complainant before she went into the store to buy popcorn. She asked them to wait for her. Ten minutes later she came out of the store, and they all walked back to the apartment building where both defendant and French reside. French opened his apartment door on the second floor so that complainant could use the washroom. They then went to defendant's apartment on the first floor. Defendant's mother and brother were present in the apartment at the time. Complainant, defendant, and French then went into the basement. While the witness was drinking beer in one room of the basement, defendant and complainant were in another room. He mistakenly walked into this other room and saw defendant and complainant unclothed in bed together. He testified that the two were having sex for about one-half hour. At this point, defendant's brother, David, came downstairs. Complainant then became angry and left because defendant took $5 back from her. On December 6, French saw complainant at Pete's. She told him that she had torn her own sweat shirt. French stated on cross-examination that he knows the whole Daniels family and goes drinking with the defendant.
David Daniels, defendant's brother, testified that around 10 or 10:30 p.m. he was in the basement of his family's apartment. When complainant, defendant, and French arrived, he went upstairs. A short time later he returned to the basement and saw complainant and defendant unclothed in bed having sex. Daniels neither saw defendant choke or hit complainant nor heard her scream. He watched her dress and walked her upstairs to let her out of the building. On the way out she told the witness she was planning to call the police because defendant had taken his money back from her. Daniels testified that Pete's Store was a "whorehouse" and that he had had sex with the complainant for money prior to October 18, 1982.
Defendant's mother, Willie Mae Daniels, testified that on the night in question she answered the door and found complainant, defendant, and Anthony French standing outside the door. As she entered the apartment, complainant in no way indicated that the defendant was forcing her into the basement. Defendant was not holding onto her arm or hand. Complainant went into the washroom first and then down to the basement. Her son David came upstairs when the three went into the basement. Later, the witness heard someone holler, went into the basement and observed the complainant yelling that she was going to call the police. The next evening the witness and her son Roy tried to locate the complainant to find out why she intended to contact the police. When they encountered the complainant at Pete's, complainant told the witness that defendant owed her $15. The three walked to Ron Smith's tavern, where complainant told the witness she did not want defendant arrested and voluntarily signed a note indicating that she would not press charges. Defendant's mother then paid complainant the $15 defendant owed her.
Roy Stevenson, defendant's oldest brother, testified that on October 19, 1982, he and his mother went to Pete's to talk with the complainant. When they arrived at Pete's, his mother asked him to go inside and tell complainant she wanted to speak with her. He did so and complainant asked him to wait for her outside. About five minutes later, complainant came out of Pete's. When his mother asked about the incident of the previous evening, complainant replied that defendant owed her $15. They walked to Ron Smith's tavern, where his mother changed a $20 bill. She asked complainant to sign a note, which complainant did. After his mother gave complainant $15, they left. After hearing all the evidence, the trial court found defendant guilty of attempted rape and unlawful restraint, sentencing defendant to five years in prison. Defendant appeals.
The only issue presented is defendant's contention that he was not proved guilty of attempted rape beyond a reasonable doubt because complainant's testimony was not clear and convincing. In a bench trial, the credibility of the witnesses and the weight to be given their testimony is for the determination of the trial court. (People v. Novotny (1968), 41 Ill.2d 401, 411-12, 244 N.E.2d 182.) A court of review will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. (People v. Akis (1976), 63 Ill.2d 296, 298-99, 347 N.E.2d 733.) Accordingly, the trial court's finding will not be disturbed unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. People v. Catlett (1971), 48 Ill.2d 56, 64, 268 N.E.2d 378; People v. Novotny (1968), 41 Ill.2d 401, 412, 244 N.E.2d 182.
Defendant argues that complainant's testimony was not clear and convincing because she failed to cry out when defendant led her down the street, when she spoke with defendant's mother at the front door, and when she was in the house with defendant and others, and because of inconsistencies in her testimony regarding the length of time she was in the apartment building. In a prosecution for rape, the testimony of the complaining witness must be clear and convincing or corroborated by some other facts or evidence. (People v. Robinson (1978), 67 Ill. App.3d 539, 545, 384 N.E.2d 962; People v. Anderson (1974), 20 Ill. App.3d 840, 848, 314 N.E.2d 651.) The significance of a victim's failure to scream or cry out depends on the totality of facts and circumstances of the case. (People v. Pointer (1972), 6 Ill. App.3d 113, 118, 285 N.E.2d 171.) For example, under circumstances where resistance would be futile and would endanger the victim's life, a victim need not resist. (People v. Smith (1965), 32 Ill.2d 88, 92, 203 N.E.2d 879.) Resistance is also unnecessary where the victim is overcome by the superior strength of the assailant or is paralyzed by fear. (People v. Smith (1965), 32 Ill.2d 88, 92, 203 N.E.2d 879.) A child might be expected to put forth less resistance than an adult. People v. Pointer (1972), 6 Ill. App.3d 113, 118, 285 N.E.2d 171.
We do not agree that complainant's testimony was not clear and convincing because she failed to cry out. In fact, the evidence indicates that she did scream. The complainant testified that when the defendant approached her and grabbed her by the arm, he threatened to kill her. He then forcibly walked her to his nearby apartment building. It should be noted that by defense counsel's own admission, the defendant, a 27-year-old male, was much larger than the 16-year-old complainant and was capable of doing almost anything to her. Once they arrived at the apartment building, the complainant started to cry out to the defendant's mother but was unable to finish because the defendant immediately forced her into the basement. While they were in the basement, defendant again threatened to kill her and while choking her for a second time, complainant screamed. Apparently, she ceased screaming only because of her fear that defendant would hit her with the belt buckle he held over her. Defendant's mother also heard complainant screaming and hollering from the basement that she was going to call the police.
A factual situation similar to the instant case was presented in People v. Sprouse (1981), 94 Ill. App.3d 665, 418 N.E.2d 1070. The complainant, an 11-year-old girl, was sitting on the couch at a friend's home watching television. Defendant was staying at the house. While she sat on the couch, defendant grabbed the victim's feet and put her on his lap. As he carried her into the bedroom, she screamed and hollered. Defendant threatened to kill her, started to fondle her, and attempted to have intercourse with her. The defendant argued that the complainant's testimony that she screamed during the attack was not credible because it was inconsistent with the testimony of other witnesses. This court, however, held that even assuming that the victim had not cried out, that fact did not raise a reasonable doubt of the defendant's guilt under the circumstances, particularly the defendant's threat on the victim's life and the size of the defendant in relation to the size of the complainant. 94 Ill. App.3d 665, 672, 418 N.E.2d 1070.
Under the present circumstances, the trial court could reasonably have concluded that the complainant offered resistance and that further resistance was unnecessary in light of defendant's threats to strike her and to kill her and his superior physical ability to carry out those threats.
We regard defendant's argument that complainant's testimony was not clear and convincing because of inconsistencies in her testimony relative to the length of time she was in the building as similarly unpersuasive. Clear and convincing evidence is not synonymous with uncontradicted or unimpeached testimony. (People v. Thompson (1978), 57 Ill. App.3d 134, 140, 372 N.E.2d 1052.) Minor inconsistencies in a complainant's testimony do not constitute grounds for reversal. (See People v. Wright (1972), 3 Ill. App.3d 829, 833, 279 N.E.2d 398.) Any discrepancies in a complainant's testimony only affect her credibility. (People v. Wright (1972), 3 Ill. App.3d 829, 833, 279 N.E.2d 398.) In arriving at its decision, the trier of fact must weigh any discrepancies in light of all other testimony presented. (People v. Wright (1972), 3 Ill. App.3d 829, 833, 279 N.E.2d 398.) Where the victim's story is consistent and such discrepancies do not detract from its reasonableness, her testimony may be found clear and convincing. People v. Thomas (1960), 18 Ill.2d 439, 442-43, 164 N.E.2d 36.
The record reveals that the trial court found complainant's testimony very straightforward and credible. We do not think that this discrepancy rendered complainant's version of the incident less reasonable. After having carefully reviewed the record, we agree that complainant's testimony was clear and convincing and find that defendant was proved guilty of attempted rape beyond a reasonable doubt.
For the reasons stated, defendant's conviction is affirmed.
JUSTICE PINCHAM, dissenting:
There was no attempted rape in this case. There was no unlawful restraint in this case. I therefore dissent.
I do not question the legal principles on which the majority relies in affirming the instant convictions, i.e., "In a bench trial, the credibility of the witnesses and the weight to be given their testimony is for the determination of the trial court. [Citation.] A court of review will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. [Citation.] Accordingly, the trial court's finding will not be disturbed unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. [Citation.] * * *. The significance of a victim's failure to scream or cry out depends on the totality of facts and circumstances of the case. [Citation.] * * * [U]nder circumstances where resistance would be futile and would endanger the victim's life, a victim need not resist. [Citation.] Resistance is also unnecessary where the victim is overcome by the superior strength of the assailant or is paralyzed by fear. [Citation.] A child might be expected to put forth less resistance than an adult. [Citation.]" But these legal principles are designed to promote, not defeat, justice. These legal principles must not be hatches out of which an unjust judgment of conviction escapes reversal.
Certainly, in a bench trial, the credibility of the witnesses and the weight to be given their testimony is for the determination of the trial court, and certainly, a court of review will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. But these principles do not indelibly chisel the findings of fact of a trial judge or jury in granite, never to be erased or reversed on appellate review. In fact, the law is to the contrary. In People v. Brown (1968), 99 Ill. App.2d 281, 288, 241 N.E.2d 653, this court held:
"Because of the nature of the crime, reviewing courts are charged with an extraordinarily high standard of care in examining the evidence in a rape case. [Citations.] When the charge is denied and the conviction depends upon the testimony of the complaining witness, it must be corroborated by evidence of other facts and circumstances unless her testimony is clear and convincing. [Citations.] * * * [A]pplication of the principles set forth above requires that the evidence be subjected to close scrutiny. [Citation.]" (Emphasis added.)
Additionally, in People v. Taylor (1971), 48 Ill.2d 91, 98, 268 N.E.2d 865, where the defendant was convicted of rape, our supreme court stated:
"As summarized in People v. Faulisi, 25 Ill.2d 457, we have held that reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and to create an abiding conviction that he is guilty of the crime charged." (Emphasis added.) 48 Ill.2d 91, 98.
In Taylor, as in the case at bar, the complainant was 16 years of age. Also in Taylor, as in the case at bar, the defendant was considerably older than the complainant. In Taylor, the defendant was 30 years of age and in the case at bar the defendant is 27 years of age. In Taylor, as in the case at bar, the defense to the rape charge was consent. It is to be noted that consent was the defense to the allegations of rape in People v. Szybeko (1962), 24 Ill.2d 335, 181 N.E.2d 176, People v. Symons (1961), 23 Ill.2d 126, 177 N.E.2d 185, People v. Rosario (1982), 110 Ill. App.3d 1020, 443 N.E.2d 273, People v. Anderson (1974), 20 Ill. App.3d 840, 314 N.E.2d 651, People v. Keeney (1973), 10 Ill. App.3d 296, 293 N.E.2d 492, and People v. Bain (1972), 5 Ill. App.3d 632, 283 N.E.2d 701. In each of these cases the reviewing court duteously executed its responsibility to carefully examine the evidence and thereupon reversed the rape convictions because the evidence failed to "remove all reasonable doubt and create an abiding conviction that the defendant [was] guilty of the crime alleged."
In the case at bar, the defendant was charged with and convicted of attempted rape and unlawful restraint. On appeal, he urges for reversal that the evidence failed to establish beyond a reasonable doubt that the act of attempted sexual intercourse was by force and against the complainant's will.
The defendant further contends that he not only attempted to have sexual intercourse with the complainant, but that he in fact did so, but with her consent. A mere cursory review of the brief, 136-page trial transcript of the testimony of the witnesses clearly reveals that the offenses were not established beyond a reasonable doubt and that the evidence miserably fails to create an abiding conviction that the defendant is guilty of the crimes charged. To the contrary, the evidence unquestionably establishes, indeed, beyond a reasonable doubt, that there was no attempted rape or unlawful restraint. In addition, the record in this case establishes beyond any reasonable doubt that ...