Appeal from the Circuit Court of Kane County; the Hon. Joseph
M. McCarthy, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 8, 1986.
Defendant, Bruce Thomas, was found guilty in a jury trial of the offenses of attempted rape and attempted deviate sexual assault (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)) and was sentenced to concurrent two-year terms of probation with a condition that he serve six months of imprisonment in the Kane County jail.
Defendant raises four issues on appeal: (1) whether the identification testimony was sufficient to prove defendant guilty beyond a reasonable doubt; (2) whether there was sufficient proof that defendant intended to rape the victim; (3) whether the two offenses are carved from the same physical act and preclude separate convictions; and (4) whether the trial court erred in not allowing defendant to present evidence and argument that his brother committed the crimes.
The charges stem from an occurrence in the early morning hours of June 10, 1984. The complaining witness testified that she attended two parties near her home in Elgin on the evening of Saturday, June 9, 1984, and early morning of Sunday, June 10, 1984, the first at the Martin Luther King Lodge and the second at Robert Johnson's residence, 485 Fremont. She stated that she saw defendant at both parties, but she didn't know him or talk to him. She also stated that she had seen him at work at Motorola in Schaumburg 10 or 20 times on breaks, although they worked in different departments, and that she had seen him two weeks prior to the incident at another party at the Johnson home, where parties were regularly held. She did not know his name.
Complainant testified that she left the second party alone around 4:30 a.m. and started to walk home, which was about a block and a half from the Johnson home. As she walked up Fremont she heard someone running behind her, but turned around and didn't see anyone. As she turned onto Porter Street, defendant was standing right next to her, about 2 or 3 feet away. She testified that he said, "you don't have to worry, I'm not going to hurt you or rape you or anything like that, I'm goin' home." Then he said, "you know me, don't you," and she said no and turned around, looked at him, and said, "you tried to talk to my girlfriend" and he said "oh yeah." They were about 5 feet from a street light, and she looked at his face "for a second." He then went on across the street and she continued walking home. When defendant was about 15 or 20 feet away from her, she testified that he stopped and faced her and that he had his pants unzipped, with his penis exposed. He ran at her and she started to run across the street toward the back of Ann Street where her house was located. Defendant ran through the bushes and grabbed her. At this time they were right across the street from the street light and she was able to see his face. She testified that he then pushed her to the ground, knocking off her glasses, straddled himself over her with his knees on her arms, and ripped her dress down the front. At this time, his face was about 6 inches from her. He then ripped off her underclothes.
Complainant stated that defendant, his knees still on her arms, then touched her around the mouth with his penis and "told me to suck him or he's gonna beat my ass." She kept turning her head and he reached back and touched her in her "private area." He then tried to hold her head still and continued to try to put his penis in her mouth without success, telling her to "come on." She was struggling to get free and tried to bite him on the arm, but couldn't say for sure if she actually bit him or not. He tried to keep her from screaming by putting his knee on her throat, but she cried out and defendant got up and ran. She testified she heard a noise which might have been a car going by right before he ran. She put her glasses back on and, when he was about midway across the yard, he started coming back again, his penis still exposed. She screamed and he turned around and ran down Ann Street. She immediately ran to her house and called the police. She described her attacker to the police and three days later identified defendant from photographs shown to her by the police.
On cross-examination, she testified that she told the police her attacker was about 25 to 26 years of age, between 5 feet 7 inches and 5 feet 9 inches, and stated that he was wearing a long-sleeved, light-colored shirt and dark slacks or jeans, that he may have had a mustache or goatee and that his hair was in a "Jheri Curl." She stated she also told the police that she may have seen him at the party on Fremont, that she was not sure that she could recognize her attacker if she saw him again, and that she may have bitten him on the left arm. She testified that she was unsure whether she could identify him because she was so upset at the time. She did not tell the police that the suspect worked at Motorola or that she had seen him at a party two weeks previously. She had a total of five alcoholic drinks that evening. Complainant also testified that at the time of the attack any light poles were at least 35 feet away, that she can't see too well without her glasses, and that the problem with her eyesight is that she can't see far away. She stated she can recognize features on someone only 6 inches away.
Complainant further testified that several days after the attack, she remembered that her attacker had talked to her friend Annette at the previous party. Her ex-boyfriend, Allison Jones, gave her the name of a possible suspect, someone who worked with her at Motorola, and she informed the police who later showed her the photographs from which she identified the defendant. She thought she had seen the defendant somewhere before the attack, but just could not recall where.
She testified that defendant, at the time of trial, had a different hairstyle than at the time of the attack although his facial hair was the same except thinner around the mustache. She stated there was no doubt in her mind that the person in the courtroom, the defendant, was the one who attacked her the morning of June 10, 1984.
Complainant's roommate at the time of the attack testified that defendant came to their apartment June 17, 1984, and asked to see complainant. She stated that defendant told her that he wasn't the one who did it, but said he was at the party on the night in question and complainant saw him there and probably got him mixed up with somebody else.
Officer Robert Jacks of the Elgin police department testified that he was the first to talk to complainant after her report and that she was very upset and emotional at the time and it was difficult to get information from her. He corroborated her testimony as to her description of the attacker and her description of what happened. He stated that complainant told him that she had no idea who the attacker was, that he may have been at the same party or she may have just seen him in the neighborhood, and that she didn't think she'd be able to recognize him again. He did not recall complainant telling him of a conversation where defendant said "you know me, don't you?"
Officer Scott Davis testified that he showed complainant a photo lineup of eight pictures on June 13, 1984. She didn't make any identification from the first four photographs, but when she picked up the card containing the second set of pictures her expression changed and "[h]er eyes got wider, mouth kind of opened and she pointed to Picture No. 5 * * * and then said oh my god, that's him." He also identified a photograph of defendant's right arm taken June 18, 1984, showing a scab of some sort on the arm. Called again as a rebuttal witness, Davis stated that he talked with defendant, who changed his story regarding where he was at the time of the offense as he had to contact some of his friends to find out what he did that weekend, but never said he'd been at the party that night.
Defense witnesses James Bradley and Robert Johnson, Jr., testified that defendant was not at the party the early morning of June 10. Justine Kelly stated she was defendant's fiance and that defendant was with her June 9 and stayed until 4 or 5 a.m., but on cross-examination said it was a Friday night and Saturday, not Saturday night and Sunday that he was with her although she said she was getting the days mixed up. She also testified that she telephoned complainant June 28, 1984, who told her that defendant didn't do it or try to do it. Kelly stated she then offered complainant some money not to testify. Cassandra Walker testified that defendant was at her home on Saturday, June 9, until about 11 or 11:30 p.m. and was wearing red shorts, a red shirt and tennis shoes. Donna Freeney, defendant's roommate at the time of the offense, testified that defendant arrived home around 11 p.m. or midnight that Saturday night and was wearing red shorts, a red top, gym shoes and ...