Appeal from the Circuit Court of Lake County; the Hon. Bernard
E. Drew, Jr., Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, William E.H. Wallace, a second class petty officer in the Navy, was charged with aggravated criminal sexual assault and home invasion in an information filed in the circuit court of Lake County. Following a jury trial, defendant was found guilty of aggravated criminal sexual assault and not guilty of home invasion. He was subsequently sentenced to a 20-year term of imprisonment.
Defendant appeals raising three issues. First, he argues that he was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault because the evidence of bodily harm to the victim was insufficient. Second, he argues that the jury should have been instructed as to the meaning of "bodily harm" and that it was either error for the trial court to fail to give such an instruction sua sponte or ineffective assistance of defense counsel for failing to request and tender such an instruction. Third, he argues that the trial court abused its discretion at sentencing by considering insufficiently reliable evidence of an out-of-state rape and evidence of non-criminal conduct in Lake County, Illinois. We affirm the conviction but remand for resentencing.
The incident out of which this case arose occurred in Waukegan the afternoon of July 19, 1984. Complainant was sunbathing in her back yard in her bikini. Defendant was driving a pickup truck. He stopped, asked her for directions to another street, and left. Defendant returned in his truck. He asked complainant if he could use her phone, and she refused saying there was a phone at a nearby store. He asked to use the phone book, and she again declined. Defendant turned to leave and complainant went to the side door of her house. She opened the door and defendant grabbed the door and entered the house behind her.
Complainant testified basically that he forced his way in, forced her to the floor, and forcibly had sexual intercourse with her. Defendant's testimony was essentially that he did not penetrate her and that she had implicitly consented to what they did together. Her implicit consent came from her overly friendly manner, the way she looked at him, and statements implying sexual attraction. When he followed her into the house, she pulled him down to the floor where they embraced, kissed and rubbed bodies against each other. Both the State and defense presented other witnesses and evidence which was introduced in support of the foregoing basic theories of the case.
• 1 The first issue raised concerns the sufficiency of the evidence of guilt of aggravated criminal sexual assault. Section 12-13(a)(1) of the Criminal Code of 1961 provides:
"The accused commits criminal sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat of force; * * *." (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a).)
Section 12-14 of the Criminal Code of 1961 provides:
"The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during the commission of the offense:
(2) The accused caused bodily harm to the victim; * * *." (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a).)
Defendant contends that this aggravating circumstance was not established by the evidence.
The parties agree that "bodily harm" in section 12-14 should be defined the same as "bodily harm" in section 12-3, the battery statute. (Ill. Rev. Stat. 1985, ch. 38, pars. 12-3(a)(1), 12-14(a)(2).) This position is supported by a recent case (People v. Boyer (1985), 138 Ill. App.3d 16, 18-19, 485 N.E.2d 460, 462). With respect to "bodily harm" in the battery statute, our supreme court has said:
"`Although it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required.'" (People v. Mays (1982), 91 Ill.2d 251, 256, 437 N.E.2d 633, ...