Appeal from the Circuit Court of Du Page County; the Hon.
Charles R. Norgle, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Richard Blake, appeals from his convictions following a jury trial in the circuit court of Du Page County for the offenses of aggravated kidnaping (Ill. Rev. Stat. 1981, ch. 38, par. 10-2), deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11-3), and intimidation (Ill. Rev. Stat. 1981, ch. 38, par. 12-6). Defendant contends on appeal that the State failed to prove him guilty of the offenses beyond a reasonable doubt, that defendant's conviction for intimidation must be vacated as the lesser included offense of deviate sexual assault and the cause remanded for resentencing, and that the trial court erred in sustaining the State's objection to a portion of his closing argument. We affirm.
Although the testimony of defendant and of the 19-year-old victim differ in many important respects, we briefly summarize the facts concerning the incident which resulted in defendant's conviction. On the morning of September 4, 1982, the victim arrived at the Bloomingshire Restaurant, where she encountered defendant in the restaurant parking lot. Either by force or consent, the victim got out of her car and entered defendant's van. From the parking lot, defendant drove the van several miles, turned off the highway, and parked in a cornfield. There, according to defendant, the victim agreed to perform an act of fellatio for $40. Because he was unable to achieve an orgasm, defendant testified, they left the back of the van and engaged in intercourse on the nearby grass. Following the intercourse, defendant testified he offered defendant only $20 because he had again not achieved an orgasm. The victim angrily refused the reduced payment and ran away from the van through the cornfield. In contrast, the victim stated she was driven to the cornfield at knife point where she was compelled to perform an act of fellatio. Defendant achieved an orgasm, ordered her outside of the van, and drove away.
After a jury trial, defendant was convicted on all three offenses. On June 20, 1983, defendant filed a motion for a new trial which the trial court denied on July 18, 1983. On July 25, 1983, the trial court sentenced defendant to concurrent terms of eight years, eight years and two years respectively for the deviate sexual assault, aggravated kidnaping and intimidation offenses. Defendant filed his notice of appeal that same day.
Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt of any of the offenses. In order to consider defendant's argument, the necessary elements of each offense must be enumerated. A person commits intimidation when with intent to cause another to perform an act, he communicates to that person a threat to inflict physical harm on the person threatened. (Ill. Rev. Stat. 1981, ch. 38, par. 12-6(a)(1).) The offense of kidnaping is committed when a person knowingly either secretly confines another against his will or by force or threat of imminent force carries a person from one place to another with intent secretly to confine him against his will. (Ill. Rev. Stat. 1981, ch. 38, pars. 10-1(a)(1), (2).) Aggravated kidnaping involves the commission of another felony during a kidnaping. (Ill. Rev. Stat. 1981, ch. 38, par. 10-2(a)(3).) To prove a deviate sexual assault, the State must establish that defendant, by force or threat of force, compelled another to perform an act of deviate sexual conduct. Ill. Rev. Stat. 1981, ch. 38, par. 11-3.
The evidence presented was sufficient to support the jury's verdict on each of these offenses beyond a reasonable doubt. Count III of the State's indictment asserted defendant committed the offense of intimidation "in that said defendant, with the intent to cause [the victim] to perform an act of Deviate Sexual Conduct, communicated to [the victim] a threat to inflict, without lawful authority, physical harm upon [the victim] * * *." The testimony of the victim was that defendant pointed a knife at her throat while she was in her car and stated, "I should kill you" and "I should cut your throat." After pushing her toward and ordering her into the van, defendant, according to the victim's testimony, followed her into the back of the van, whereupon he stroked her throat and stated "Such a pretty throat. I should cut it." Later, while driving the van, defendant told the victim (age 19) that she would never live to see the age of 20. Throughout the incident in the cornfield during which the victim performed a deviate sexual act upon defendant, the victim testified, defendant pointed a knife at her and even touched the knife blade to her skin. These facts, if accepted as true by the jury, established beyond a reasonable doubt that defendant committed the offense of intimidation.
The victim's testimony also supports defendant's conviction for the aggravated kidnaping offense. The victim testified that she was forced at knife point to leave her car and enter defendant's van. Additionally, the victim stated she was threatened at knife point throughout the ride in the van. Since confinement in an automobile satisfies the statutory requirement of secret confinement (People v. Harris (1979), 68 Ill. App.3d 12, 14, 385 N.E.2d 789, 791), then defendant was proved guilty of kidnaping beyond a reasonable doubt if the jury believed the victim's testimony that she was confined against her will.
Defendant's conviction for aggravated kidnaping is dependent upon whether the evidence established he committed another felony deviate sexual assault during the kidnaping. Both defendant and the victim agree that the victim performed an act of fellatio upon defendant. The dispute centers around whether defendant by force compelled the victim to perform the act. The victim testified that defendant ordered her to perform oral sex on him and that during the act he told her she had better know what she was doing or she would die. While the victim performed the fellatio act, defendant stroked her back, neck and head with the blade of the knife and even grabbed her nipple "point[ing] the blade against it with pressure." These facts, if believed by the trier of fact, established a deviate sexual assault beyond a reasonable doubt.
Based upon this review of the record, evidence was introduced which supported conviction on each of the three offenses. The central issue, therefore, is one of credibility, for defendant and the victim the only witnesses to the events inside the van presented conflicting testimony on the events precipitating this prosecution. The credibility of the witnesses and the weight to be accorded their testimony are matters for the jury's determination. (People v. Cornes (1980), 80 Ill. App.3d 166, 399 N.E.2d 1346.) Even the testimony of the complaining witness alone contradicting the testimony of the accused, if positive and credible, is sufficient to sustain a conviction for deviate sexual assault. (People v. Hamil (1974), 20 Ill. App.3d 901, 314 N.E.2d 251.) When the conviction is based upon the testimony of the victim, it must be clear and convincing or otherwise corroborated by other evidence. People v. Cornes (1980), 80 Ill. App.3d 166, 172, 399 N.E.2d 1346, 1350.
With these principles in mind, we review the salient testimony of both the victim and defendant and the other evidence to determine if a reasonable doubt exists concerning defendant's conviction. The victim testified that she arrived at the parking lot of the Bloomingshire Restaurant at 11:28 a.m. on Saturday, September 4, 1982, for the purpose of meeting a friend, Joel Maschinski, to repay a $40 debt she owed him for concert tickets. Maschinski's testimony confirmed the purpose of the meeting and established that he was 10 to 15 minutes late, arriving at approximately 11:45 a.m. The victim further testified that she waited in her car with the radio playing for Maschinski to arrive. In contrast, defendant testified he met the victim across the street in a Dunkin Donuts shop, where she propositioned him. He declined, but agreed to drive her to her car parked across the street in the restaurant parking lot. The jury could have found it unlikely that the victim would ask him for a ride across the street, especially after he had just declined her offer for sex.
The victim further testified defendant arrived in his maroon van in the restaurant parking lot, which was deserted except for her car, got out and tried to open the restaurant door, and then asked the victim if she was employed by the restaurant or knew the owner. She said she didn't, he again tried the door, she turned to look for Maschinski and suddenly defendant through the car window pointed a knife at her. After threatening to cut her throat, he forced her to enter the van.
Defendant's version was that after dropping the victim off in the parking lot, he tried the restaurant door and then came back to the car and asked the victim if her offer was still good. She said it was, and defendant suggested they use his van. Once there, they kissed and caressed, but defendant said he was nervous because of the people nearby. Then, the victim heard a car approach, looked out the back window, identified the driver as Maschinski and ordered defendant to drive away so that Maschinski wouldn't discover them and inform her boyfriend.
The jury could have found several problems exist with defendant's version. First, since the victim had agreed to meet Maschinski at the restaurant during the time she and defendant were in the van, the victim would not likely risk being caught by agreeing to perform the act in the parking lot. Furthermore, both Maschinski and a police officer who later arrived at the restaurant found the victim's car with the keys in the ignition, with the ignition in the auxiliary position, and with the radio playing. While defendant testified the victim left the keys in the car because she stated "this won't take long," the jury could have concluded the victim would not likely leave the car in this condition if she were concerned about being discovered, because she knew Maschinski was due to arrive at any moment. Finally, defendant's explanation for his inability to become aroused in the van that there were a lot of people around conflicts with the victim's statement that the restaurant parking lot was empty. Despite his testimony that he was nervous, defendant was the person who suggested that they enter the van to have sex. Also, defendant testified the victim observed Maschinski out of the back window of the van, while the victim testified the back window of the van was too dirty to afford a view of the outside.
Both defendant and the victim testified that they then left the parking lot in defendant's van. Defendant argues on appeal that the victim's testimony is not credible because she had several opportunities but never attempted to escape while the van was stopped at traffic lights. However, as emphasized by the State, the victim testified salt bags stacked more than 2 1/2 feet high blocked the rear-door exit and that she did not see the side door of the van until the van was parked in the cornfield. Throughout this period, the victim testified she was at least unclothed from above her waist and she feared for her life. Under these ...