Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 19, 1986.
Defendants were charged with two counts of aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12-14(a)(1), (3)), and one count of criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-13(a)(1)). After a bench trial, defendants were convicted of each count. The trial court found the criminal-sexual-assault convictions merged into the aggravated-criminal-sexual-assault convictions. Therefore, it sentenced defendants on the aggravated-criminal-sexual-assault convictions.
Defendants appeal, arguing that the location of the offense was not proved beyond a reasonable doubt, that the evidence was insufficient to establish aggravated criminal sexual assault, and that they were deprived of due process by the prosecution's failure to have fingernail scrapings analyzed. Defendants, Charles Cunningham and Kim Poke, argue that the trial court erred in admitting into evidence a rifle found in Cunningham's vehicle. Defendant, Dwayne Ramsey, argues the trial court abused its discretion in sentencing him.
On April 2, 1985, complainant lived on East Johnson Street in Danville. Complainant testified that as she was talking on the telephone that evening, Ramsey knocked on her door, entered the house, and asked to speak with her. He left after she refused to talk with him and told him that she did not want any further contact with him. She had met Ramsey on New Year's Eve of 1982 and had engaged in sexual relations with him for approximately 11 months. The relationship ended prior to 1985. Complainant testified that she had never dated Poke or Cunningham.
After Ramsey left, Debbie Cox, a friend who was visiting complainant, asked complainant to walk her home. As she and Cox were walking toward Bowman Street, complainant stated, Ramsey again approached and asked why she had refused to accompany him. She told Ramsey she did not want to see him again and was getting married soon. Ramsey stated that she would not marry. Ramsey followed complainant as she was walking home alone. She again refused to accompany him.
Complainant further testified that at this point Poke and Cunningham got in front of her on the sidewalk. Cunningham's car was parked on a side street. Cunningham asked Ramsey whether complainant was going to come with them. Ramsey replied that she did not want to do so but was going to accompany them. Complainant ran; however, Ramsey caught her, and he and Cunningham forced her onto the backseat of the car. Ramsey lay on top of complainant. Cunningham drove. While the car was moving, Ramsey threatened complainant, attempted to disrobe her, and told her that if she failed to cooperate, Cunningham and Poke would also have intercourse with her. Complainant stated that she continued to scratch and struggle with Ramsey. She could not tell in which direction the car traveled, but the journey lasted 10 to 15 minutes. Complainant could see a well-lit area through the rear window of the car.
After Ramsey removed her clothing, he noted that complainant was menstruating and asked the others about continuing. Cunningham indicated defendants should have intercourse with complainant. Because complainant was still struggling and scratching Ramsey, he told Cunningham to get the shotgun out of the trunk and threatened to kill complainant. Cunningham went to the back of the car. However, complainant did not see a shotgun. Once Ramsey had penetrated complainant's vagina, he held her until Cunningham was ready. She removed her sanitary napkin and pushed it behind the seat. After Cunningham penetrated her vagina, he held her down until Poke was ready. However, due to her struggles, Poke was unable to penetrate her vagina. She bit Poke on the arm, kicked, and scratched him. Poke was wearing a coat. After Poke was finished, he held her until Ramsey returned. Ramsey penetrated her vagina again and told her that he would not permit her marriage. Ramsey suggested that they strip complainant and make her walk home or take her to Champaign or Indianapolis. Cunningham responded that either city sounded good. Ramsey stated that they could simply use the shotgun and kill her.
After complainant promised not to report the incident, defendants returned complainant to Johnson Street. Ramsey lay on top of her during the return journey which lasted 10 minutes. The vehicle traveled on Bowman Street and turned onto Johnson Street. Complainant left a belt, sanitary napkin, and cigarette lighter in the car. Soon after arriving home, complainant called a crisis center and reported the incident. The police took her to the hospital.
The trial court sustained defendant's objection to the prosecutor's question about whether all of the activities had taken place in Vermilion County. However, the court allowed additional examination as long as the questions were nonleading. Complainant then testified that Cunningham's car was parked on Johnson Street facing away from Bowman. After the car started moving, it turned into an alley, traveling to Harrison Street. While on Harrison Street, the car traveled away from Bowman and to Collett Street, where it turned right. The car then traveled on Collett Street for 10 minutes. The court overruled defendants' objections to the speculative nature of the testimony, noting that complainant was subject to cross-examination.
Cox corroborated complainant's account of Ramsey's initial contact with complainant. Dr. Edward Ortiz examined complainant on April 2. He noted several small abrasions on her left wrist and a 4-inch long abrasion on her left thigh. There was no evidence of laceration, abrasions, significant tenderness, or swelling of the vaginal or rectal area. Christine Holland, a registered nurse, stated that complainant appeared neat as opposed to disheveled. Barb Thornton, who had known complainant for several years and who worked at a women's crisis center, talked to complainant at the hospital on April 2. Complainant recounted the incident and did not act in her usual manner.
The police recovered a blue belt and sanitary napkin from the backseat of Cunningham's car. A loaded rifle was recovered from the trunk. Phillip Sallee, a forensic serologist, testified that he analyzed samples sent to him by the police. The parties stipulated to his qualifications and to the report of his findings. Sallee found seminal material, containing A, B, and O activity in complainant's vaginal swab. He could not state that the A and B matter came from the same person. The report stated the seminal fluid from the vaginal swab and extracted from complainant's jeans could have come from all three defendants. However, neither Cunningham or Poke individually could account for all of the A, B, and O activity present. The material extracted from complainant's underwear could have come from Poke. Pubic hair consistent with Cunningham's was found on complainant's clothing. A pubic hair similar to Poke's hair was recovered from complainant's pubic combings. A pubic hair similar to complainant's pubic hair was found in Ramsey's pubic combings.
Sallee further testified that he did not examine complainant's jacket or the fingernail scrapings at the police department's direction. He noted that he is not qualified to examine or identify human skin and did not believe ...