Appeal from the Circuit Court of Cook County; the Hon. Michael
C. Close, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant was charged with rape, deviate sexual assault, unlawful restraint and aggravated battery. Following a jury trial, he was found guilty of unlawful restraint and sentenced to a maximum term of three years in the Illinois Department of Corrections.
On appeal, defendant contends: (1) that he was not proved guilty beyond a reasonable doubt, (2) that he was denied a fair trial due to the impropriety of the prosecutor's closing argument, (3) that the trial judge committed reversible error by prematurely giving a Prim instruction, and (4) that the trial judge abused his discretion by sentencing defendant to the maximum statutory term of imprisonment.
We affirm the conviction and sentence.
The testimony adduced at trial revealed the following:
The victim attended a Halloween party with her boyfriend, Don O'Brien, on the night of October 31, 1981. The victim and O'Brien left the party at approximately 3:30 a.m. She dropped off her boyfriend and proceeded to visit a bar where her brothers worked. She arrived at the bar around 4 a.m., had one beer and left an hour later.
The victim then drove to her boyfriend's parents' home at 841 West Oakdale and parked her car in the driveway. Having no house key and realizing that her boyfriend's brother, John O'Brien, would soon be coming home from work, the victim remained in her car and waited for someone to arrive and let her into the house.
While the victim was waiting, she fell asleep. She testified that the next thing she knew, the car door opened, causing the dome light in the car to go on. When the victim turned to see who had entered the car, she saw defendant, who got into the car, placed his hand over her mouth and said, "Shut up or I'll kill you." Defendant then struck the victim with his other hand and told her, "Don't say anything * * * you're going to do what I say and you are going to like it." Defendant then partially undressed the victim, who attempted to open the car door, only to find that it was locked. The victim testified that defendant then started choking her, banged her head against the car window two or three times, and had intercourse with her. Defendant then attempted anal penetration, but this attempt was interrupted by the sound of a police siren.
Upon hearing the siren, defendant pushed the victim's head down and laid on top of her until the siren passed. He then told the victim that he "can't do this anymore," got out of the car, and fled. The victim stayed down in the car for awhile and then rang the doorbell at the O'Brien home. The victim's boyfriend's sisters let her in and then drove her to Columbus Hospital, where she remained for the next five days, suffering from a severe concussion.
Approximately an hour after her arrival at the hospital, the victim gave a police officer a description of her assailant. She described him as a man in his midtwenties to 30, moustached, between 5 and 6 feet tall, weighing approximately 180 pounds, wearing blue jeans, a white button-down collared shirt, a dark velour vest over the shirt, and a wristwatch with a square black face and a dark leather band. The police report made no mention of a moustache. She was uncertain as to her attacker's height because he was seated throughout the incident.
On November 10, 1981, the victim went to Area 6 police headquarters and was shown a photo array from which she positively identified defendant. On March 13, 1981, the victim viewed a lineup at the police station and again positively identified defendant. She also made an in-court identification of defendant as the man who restrained her.
John O'Brien, a resident of 841 West Oakdale, testified that on November 1, 1981, at approximately 5 a.m., he was returning from work and looking for a parking space in the vicinity of 841 West Oakdale. He saw two cars in his driveway, that of his parents and that of the victim. He also saw defendant "hanging around" in front of the house. O'Brien stated that he had to circle the block twice to find a parking space and that the first time around, he saw defendant getting out of a car directly across the street from 841 West Oakdale. Defendant then proceeded across the street to the side on which the victim's car was parked. The second time O'Brien circled the block, he saw defendant in front of the Oakdale house, walking down the sidewalk towards the driveway of 841. O'Brien testified that there was a street light directly across from 841 West Oakdale. O'Brien finally found a parking space some time between 5 a.m. and 5:30 a.m., and walked toward his house. He reported that he did not see anyone in either of the cars parked in his driveway, but explained that he did not have to pass the parked cars as he walked into the house.
At the conclusion of the State's case in chief, defendant moved for a directed finding. The trial court granted the motion only as to the count for deviate sexual assault.
Defendant testified that on October 31, 1981, he had driven from his home in Michigan to a friend's apartment at 809 West Oakdale in Chicago, to attend a Halloween party. He arrived at approximately 9:30 p.m., wearing blue jeans and a white turtleneck shirt. His friends made him paint his face white with a star on it. He stated that he wore the makeup all evening and did not take it off until he went to bed. Defendant had a moustache, stands approximately 6 feet 3 inches tall, and weighs around 210 pounds. He denied ever owning a dark-faced wristwatch with a dark ...