Appeal from the Circuit Court of Cook County; the Hon. Michael
Toomin, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a bench trial defendant was convicted of deviate sexual assault and armed violence and sentenced to concurrent six-year terms. Defendant states the issues on appeal to be that (1) there was insufficient proof of force; (2) the trial court erred "in considering out-of-court pre-seizure description of weapon not testified to by complainant," and (3) the armed violence conviction should be vacated because it arose out of the same physical act giving rise to his conviction for deviate sexual assault.
Pertinent testimony is as follows: Complainant, a 19-year-old college student, testified that at 3:30 p.m. on August 8, 1983, he was working as a grounds keeper at a church in Northbrook when defendant drove his blue truck into the church parking lot and while seated in the truck pointed a gun at complainant. Defendant then left the truck and with the gun pointed at complainant's chest told him to go over to some nearby bushes. Complainant, who stated that he was scared because he had been shot once before, went behind the bushes with defendant who, with the gun in his hand, forced complainant to perform an act of oral copulation. When it was completed defendant, still holding the gun, kissed complainant on the mouth and asked him to drop his pants, which he did, and defendant "kissed his butt." Complainant stated defendant then went back to his truck, which was about 15 to 25 feet away, and, upon his return, still holding the gun, gave complainant a bottle of Jack Daniels whiskey and a business card bearing his name, address and telephone number. He asked complainant to call him "Uncle Marv" and told him that if he ever needed any money he would give it to him. Defendant then left and complainant said that after he had "a couple of swigs," he drove to a park and called his girlfriend. He denied consenting to perform the act of copulation.
On cross-examination the complainant testified that the gun was black, thin and about six inches to eight inches long; that he didn't know what kind of gun it was; that he didn't know what a pellet gun looked like; that the rectory of the church was about a block and a half away and that no one else was around there; and that he didn't run away when defendant went back to his truck because there was nowhere to run.
Complainant's girlfriend stated that when she arrived at the park he was crying and said that "he had been taken advantage of" by a man. He said that he was too embarrassed to go to the police. That same evening they drove to the address printed on the business card he had received from the man and they saw the blue truck he had been driving. Complainant then attempted to call a friend but the friend was not at home. On the following day, after speaking with her employer, she reported the incident to the police and gave them defendant's business card. She later prevailed upon complainant to talk to the police.
Northbrook Police Detective Willis testified that he and Officer Jordan arrested defendant on August 9 at his home. At that time defendant took them to his truck, where they recovered a Crossman pellet gun from the front seat. The gun was received in evidence without objection.
Defendant testified that he was a 50-year-old, self-employed landscaper and at about 3 p.m. on August 8, 1983, he was driving past a church when he saw complainant working and decided to offer him a beer. When he handed him the beer, complainant stated, "You startled me. I thought you had a gun," to which defendant replied, "Why would I pull a gun? I do have one in the [truck] but there is no need to pull a gun on you. I am offering you a can of beer." Defendant said that after talking for a while he asked complainant if he wanted a shot of vodka, and when defendant stated he would rather have Jack Daniels whiskey, he drove to a nearby liquor store, purchased a bottle and on his return gave it to complainant. As they talked he said the conversation turned to sex and he asked complainant "if he had ever gotten it on with another guy." Complainant replied that he hadn't but indicated he would be interested in doing so, and they went into the bushes, where defendant performed an act of oral copulation on complainant. When he asked complainant to orally copulate him he said that he would have to think about it. Complainant then said that he had to meet his girlfriend at 4:30 p.m. and drove his car to the place where they had been sitting. Defendant described complainant's car as a dark brown Pontiac, two-door sedan with a bench seat. When complainant started to leave, defendant said he gave him a business card and told him he would give him money if he needed it. Defendant also testified that the gun in his truck had been loaned to him by his landlord, and, although he kept it at his shop, he was taking it home that day for safekeeping but had forgotten to take it out of the truck when he arrived home after the occurrence.
Charles Ferrer, owner of a liquor store, testified that defendant came to his place of business to buy beer at about 3 p.m. on the day in question and then returned a half hour later to purchase a bottle of Jack Daniels whiskey. The witness said that although defendant was a frequent customer this was the first time he had purchased Jack Daniels whiskey.
In rebuttal the State presented the testimony of Officer Jordan, who stated that before he arrested defendant on August 9 he went with him to his truck, where Jordan saw and recovered the pellet gun. Prior thereto, complainant had described the gun to him as being long, thin and black.
In finding defendant guilty, the trial court concluded that complainant would not have been able to accurately describe the gun to Officer Jordan had he not seen it at the time of the occurrence.
The first issue presented in defendant's brief that there was insufficient proof of force was not supported by any argument; rather, defendant argued only two issues: (a) that it was error for the trial court "to consider rebuttal police hearsay that complainant described gun prior to seizure where consent was defense, complainant's testimony was impeached, uncorroborated, and otherwise unconvincing, and where State never asked him if he did in fact give such a description"; and (b) that "double punishment for the same conduct was improper."
• 1 Concerning the first of those arguments, we note that in the rebuttal testimony of Officer Jordan he stated that prior to his arrest of defendant and before Jordan had seen him or his truck, complainant had given him a description of the gun used by defendant as being long, thin and black. Defendant maintains "that the court erred in accepting this hearsay testimony." However, the court is not required to exclude or stop the introduction of improper testimony where, as here, defendant makes no objection to such testimony and "it is to be considered and given its natural probative effect." (People v. Akis (1976), 63 Ill.2d 296, 299, 347 N.E.2d 733, 735.) Moreover, no prejudice resulted to the defendant since Officers Jordan and Willis had each previously testified that the gun found in defendant's truck was a long, dark gun which matched the description complainant had given them of the gun.
• 2 The seminal question before the trial court was whether plaintiff consented to the sexual activity with defendant, and the parties agree that the resolution of this question hinged upon the relative credibility of complainant and defendant, specifically as to whether force was used by defendant by use of a gun. The testimony of Officer Jordan was significant in that the trial court concluded that complainant would not have been able to describe the gun had he not seen it, as he testified, in the hand of defendant during the occurrence. In disagreeing with this conclusion, the dissenting Justice here states that complainant "might just as well have acquired his ability to describe the gun from having seen it in the defendant's truck during his drinking and sexual interlude." However, complainant stated that there had been no drinking between them he having taken "a couple of swigs" after defendant had left the area and it was the testimony of defendant that the drinking was "in a grassy area" and both said that the sexual activity took place behind the bushes. In any event, there is nothing in the record to indicate that any such conduct occurred in or near the truck or that complainant was at any time close enough to the truck to be able to see the gun which defendant said was in a holster on the seat. Thus, there is no record support for the suggestion of the dissenting Justice that complainant might have seen the gun in the truck, and there is clear support for the conclusion of the trial court that complainant would not have been able to describe the gun to Officer Jordan had he not seen it in defendant's hand during the occurrence. It is noted also that defendant does not negate complainant's description of the gun as being long, thin, and black and, although it was apparently a pellet gun, complainant stated that he did not know what a pellet gun looked like and it is clear that he believed it to be a bullet gun. Additionally, defendant does not contend that it did not look like such a gun.
• 3 We see little merit in the further argument of defendant that complainant's testimony was not credible because he did not make a prompt complaint of the occurrence. It is the province of the trier of fact to determine the credibility of witnesses and the weight to be given their testimony. (People v. Secret (1978), 72 Ill.2d 371, 381 N.E.2d 285.) Where the evidence is conflicting a reviewing court will not substitute its judgment for that of the trier of fact (People v. Puente (1984), 125 Ill. App.3d 152, 465 N.E.2d 682), and a conviction will be disturbed "`"only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to the defendant's guilt. [Citation.]"'" (People v. Kline (1982), 92 Ill.2d 490, 506, 442 N.E.2d 154, 161, quoting People v. Durley (1972), 51 Ill.2d 590, 593, and People v. Adams (1970), 46 Ill.2d 200, 209.)
• 4 Here, complainant explained that his failure to immediately report the incident to the police stemmed from embarrassment, and given the circumstances of the offense, his youth and the fact that it was his first such experience, we do not find, as suggested by defendant, that by reason of his failure to make a prompt complaint, his testimony was unconvincing.
This case presents a situation in which the testimony of complainant and defendant is almost diametrically opposed. Defendant stated that while he had a holstered gun in his truck he never removed it, whereas complainant said that defendant pointed a gun at him from the truck and continued to do so at all times during the occurrence. Defendant stated that he performed a consensual act of copulation on complainant, who said that he was forced at gunpoint to perform an act of copulation on defendant. Defendant stated that he bought Jack Daniels whiskey because complainant said he preferred that drink and they did some drinking before any sexual activity; whereas complainant denies that he made any such statement or that the whiskey was purchased for him. Defendant says that they drank beer and whiskey and had an extended conversation before the sexual activity took place, but complainant denies drinking or having any conversation with defendant at any time. Complainant's testimony was corroborated to the extent that the police found the unholstered gun in the truck of defendant the next day, and there was no significant corroboration of defendant's testimony by the liquor store owner, as suggested by the dissenting Justice, since he testified only that defendant had purchased beer at about 3 p.m. and returned a half hour later to purchase a bottle of Jack Daniels. He was indefinite as to how he was able to remember after five months that it was about 3:30 when defendant purchased the Jack Daniels, particularly in view of the fact that defendant had been coming to his store practically every day for several years. Complainant testified that defendant drove into the parking area about 3:30 p.m. and, after leaving, did not return.
• 5 There are some implausibilities in the testimony of both, and while the dissenting Justice, in recommending reversal, states that the trial court "apparently ignored the complainant's testimony of the defendant's gift of the liquor and of the business card and the defendant's gift of money to the complainant," which the dissenting Justice believes is "logical and consistent with human behavior if the sex act was consensual," there are other reasons consistent with human behavior for defendant's gifts and card, not the least of which is that defendant may have thought that the young man would be too embarrassed to make a complaint and, by his gifts and suggested loan of money, he would encourage him not to do so and perhaps establish a continuing relationship with him. In any event, the trial court did find the testimony of complainant to be credible on the issue as to whether defendant used a gun to force the sexual act, and, considering the totality of the circumstances, we cannot say that the evidence was not so unreasonable or improbable so as to raise a reasonable doubt as to defendant's guilt.
• 6 Defendant's final contention is that his armed violence conviction must be vacated because it was based upon the same physical act which gave rise to his conviction for deviate sexual assault. We and the State agree with this contention (see People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273; People v. Mormon (1981), 97 Ill. App.3d 556, 422 N.E.2d 1065, aff'd (1982), 92 Ill.2d 268, 442 N.E.2d 250), and we vacate the conviction and sentence for armed violence.
Accordingly, the judgment of the circuit court is affirmed in part and vacated in part.
Pursuant to People v. Nicholls (1978), 71 Ill.2d 166, 374 N.E.2d 194, we grant the State's request that defendant be assessed $50 as costs for the State's defending this appeal, and incorporate it as part of the judgment.
Affirmed in part; vacated in part.
JUSTICE PINCHAM, concurring in part and dissenting in part:
I dissent. The State's evidence not only miserably failed to prove beyond a reasonable doubt that the defendant was guilty of deviate sexual assault or armed violence; more importantly, it was the State's evidence that proved beyond a reasonable doubt that the defendant was not guilty of the commission of those offenses. Inasmuch as the majority opinion vacates the armed violence conviction, I address only the deviate sexual assault conviction.
Section 11-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11-3) provides, "Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault." (Emphasis added.) The two essential ingredients of the offense of deviate sexual assault pertinent to the case at bar which were not proven beyond a reasonable doubt, were (1) the defendant's use of force or threat of force; and (2) the compulsory performance of an act of deviate sexual conduct.
The complainant claimed that he was compelled by the defendant's use of force or threatened force to perform an act of oral copulation upon the defendant. The defendant denied the use of force or threatened force and further denied that the complainant orally copulated him. Rather, the defendant readily admitted, when he was arrested and at trial, that he orally copulated the complainant without force or threatened force and with the complainant's consent. It was the State's evidence that proved beyond a reasonable doubt that the act was without force and with the complainant's consent, and this evidence was buttressed by the defendant's evidence to proof beyond any doubt.
The majority opinion aptly points out that it is the province of the trier of fact to determine the credibility of witnesses and the weight to be given their testimony (People v. Secret (1978), 72 Ill.2d 371, 381 N.E.2d 285), and that where the evidence is conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. (People v. Puente (1984), 125 Ill. App.3d 152, 465 N.E.2d 682.) These legal principles do not justify or require this court to ignore the ...