Appeal from the Circuit Court of Adams County; the Hon. Robert
W. Cook, Judge, presiding.
PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1986.
After a jury trial, defendant was convicted of three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(a)(1)). The trial court sentenced him to seven years' imprisonment. He appeals arguing that section 12-16(a)(1) of the Criminal Code of 1961 is unconstitutional; that he was not proved guilty beyond a reasonable doubt; that the trial court erred in admitting evidence; that he received ineffective assistance of counsel; that the trial court abused its discretion in sentencing; and that he is entitled to a credit against his fine.
An information alleging that defendant committed aggravated criminal sexual abuse was filed. Subsequently the State filed an amended three-count information. At the trial Donald McQueen testified that on September 23, 1985, defendant, who was staying at McQueen's sister's apartment, called McQueen and told him to come to the apartment. McQueen went to the apartment and knocked on the door. Defendant, standing slightly behind the door, opened it, and McQueen could see he was not dressed and had a six-inch knife with a three-inch blade in his hand. Defendant was within arm's reach of McQueen and ordered him to enter. McQueen stated that he was frightened and did not know why he did not run away. After he entered the apartment, defendant ordered him to undress. Defendant told McQueen that he had heard McQueen engaged in oral sex and ordered McQueen to sit on the bed. Defendant moved closer to McQueen. He then waived the knife in close proximity to the victim's penis. Defendant repeatedly stated that he had heard McQueen engaged in oral sex, fondled McQueen's penis, and asked McQueen to cooperate. McQueen further testified that he then tried to strangle defendant and as he did so, defendant dropped the knife and McQueen picked it up. Defendant then said he had a gun in his shoe or boot, walked toward his shoe, and although McQueen didn't see a gun, he gave the knife back to defendant.
After McQueen gave the knife back, defendant again requested McQueen engage in sexual conduct with him. McQueen refused, and defendant became angry. However, he told McQueen to dress, and after McQueen dressed, defendant hit him with his fist and cut his lip with the knife. McQueen further testified that he thought he was hit first, then cut. The cut left a scar.
On cross-examination McQueen stated that he was sure he was cut by the knife. McQueen agreed that the doorway of the apartment was near a staircase and it would have been easy for him to run when defendant opened the door. Defense counsel then questioned McQueen at length about the difference in his description of the conduct which he gave to the police and his description at trial. McQueen testified essentially that he thought the terminology which he used in reporting the offense to the police and the terminology which he used at trial meant the same act.
McQueen further stated that he was 6 feet 2 inches tall and weighed 217 pounds. He thought defendant was about 5 feet 8 inches tall. McQueen admitted that he had been in two fights in his life and had been able to defend himself. He had three or four drinks that evening but was not drunk.
Dennis Bingheim, a police officer, testified that he took McQueen's statement on September 23, 1985. McQueen was wearing a bloodstained shirt, had a cut on his mouth, and was not intoxicated. The deeper part of the cut looked like a knife cut or a cut from a sharp instrument. Bingheim stated that McQueen was nervous and upset, hesitant in answering some questions but forcefully negative in answering other questions. When asked about specific sexual acts, McQueen became very hesitant and embarrassed. When McQueen answered affirmatively, he was quiet and timid; when he answered negatively about sexual conduct, he was strong in denying the conduct. The police did not find a knife or gun when they searched defendant's residence.
On cross-examination defense counsel asked Bingheim whether he had an opinion about why McQueen answered questions in a hesitant manner. Bingheim responded that he had an opinion. Defense counsel asked what that opinion was, and Bingheim responded that he thought McQueen was embarrassed and scared. Defense counsel then asked whether it was possible that McQueen did not want to lie to the police. Bingheim responded that he believed McQueen did not want to lie to him.
On redirect examination the prosecution asked whether in Bingheim's opinion, given McQueen's demeanor, Bingheim believed he was truthful. Bingheim stated that he believed McQueen was telling the truth.
Defendant did not object during any of this questioning.
Defendant testified in his own behalf, stating that he had not asked McQueen to come to the apartment. McQueen arrived at the apartment, asked for his sister, and said he needed money. Defendant told McQueen that he did not have any money, and McQueen, who had a drinking problem and had been drinking, became abusive and demanded money.
Defendant further stated that because it was warm and he had only one set of clothing, he had been watching television while wearing only his underwear. After he let McQueen into the apartment, he went back to lying on the edge of a bed. McQueen grabbed defendant from behind and started choking him when defendant moved suddenly to get a cigarette. Defendant forced McQueen to release him. After McQueen again asked for money and defendant told him to leave, McQueen made ...