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02/27/87 the People of the State of v. Raymond Dick

February 27, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RAYMOND DICK, DEFENDANT-APPELLANT



Before finding the defendant guilty of rape the trial court stated, "he court does agree that the main issue involved in the case, even though there are some other issues, is as to whether or not the sexual act was consensual or non-consensual." (Emphasis added.) The trial court further noted, "he complaining witness was pulled out of the building and taken to the building where the sexual intercourse took place," "that the defendant dragged the complaining witness out and she was thrown onto the floor of the cab,"2 and that "when they arrived back at the complaining witness' abode . . . she was pulled or dragged [and] . . . fell into the snow." The trial court concluded, "None of those type of descriptions to this court appears to be an act that the court can regard as being consensual on the part of the complaining witness . . .." The burden was not on the defendant to prove that the act of sexual intercourse was consensual. Rather, the burden was on the State to prove beyond a reasonable doubt that the intercourse was not only nonconsensual but also that it was with force, against the will of the complainant and, on the facts in this case, that the complainant resisted.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

505 N.E.2d 1157, 153 Ill. App. 3d 670, 106 Ill. Dec. 366 1987.IL.247

Appeal from the Circuit Court of Cook County; the Hon. Maurice D. Pompey, Judge, presiding.

APPELLATE Judges:

Justice Lorenz delivered the opinion of the court. Sullivan, P.J., concurs. Justice Pincham, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

In a bench trial defendant was convicted of aggravated kidnaping and rape, receiving concurrent 12-year sentences for those offenses. On appeal he contends: (1) his guilt was not established beyond a reasonable doubt, and (2) the trial court erred in refusing to admit into evidence an allegedly corroborating statement made by the defendant.

We affirm.

At the bench trial the following pertinent evidence was presented.

Linda L. testified that on February 8, 1982, she attended a meeting organized by her employer, an advertising agency, at the Westin Hotel in Chicago. At 6 p.m. she and other employees went to a nearby bar. Linda L. left the bar with a friend from work at about 10:30 p.m. She testified that she was "under the influence of alcohol." She got in a cab but then decided to take a bus. Although Linda L. could not recall who was driving this cab, other evidence at trial, including admissions made by the defendant, established that defendant was the driver.

After waiting five minutes for a bus, Linda L. hailed a cab, again driven by the defendant. When they arrived at her apartment building, she discovered she had no money for the fare. Defendant refused to allow her to get the money from her roommate. He initially agreed to accept a check, saying his name was John M. Anderson. But when Linda L. gave him the check and tried to leave, the door handle would not open. Defendant drove off with Linda L. still in the cab. She attempted to exit through the window but he grabbed her and would not let her leave. He told her he would drive to the police station and she agreed. But when he drove away from the direction of the station she asked where they were going. Defendant said if she could not pay with cash she would pay with her body.

Linda L. decided to feign illness so that defendant would not harm her. She slumped back in the seat, rolled her eyes up into her head, and hyperventilated as if suffering an epileptic fit. Defendant drove for about 20 minutes and then stopped on a deserted street. Defendant told her this was a Puerto Rican neighborhood and she should not bother to run. This statement and the tone of his voice made her believe it would be dangerous to flee. She continued to feign illness.

The defendant opened Linda L.'s door, grabbed her by the shoulder and arm, and pulled her out of the car. He carried her into a building and placed her on a bare mattress, where he slapped her. He took all her clothes off as well as his own. He then began to have intercourse with her. Linda L. lost consciousness. When she came to, the defendant was still on top of her, trying to kiss her. He slapped her again and got dressed. She was shivering and he placed a space heater by her and then put her clothes back on except for her bra and hose.

Defendant next dragged Linda L. out of the building by her arms and shoulders and put her back into the cab. Because she was still feigning illness she fell to the cab floor, where defendant left her. He drove back to her building, pulled her out of the cab by her arms and shoulders, and left her in the snow where she fell. As he drove off she saw that his license number was 914.

When the cab turned down another street, Linda L. ran screaming into her apartment building. Her roommate buzzed her up and she ran to their door, screaming that she had been raped. In the apartment she wrote down the number of the cab.

Linda L. telephoned a doctor friend for help. While on the phone three police officers walked in. She told them she had been raped, gave them the cab number, and described her assailant. She was then taken to the hospital. A tampon she wore because of a vaginal discharge was removed by a doctor, apparently because it had become lodged posteriorly. Linda L. testified that at the hospital her vaginal area was tender.

Linda L. was next taken to the police station, where she identified the defendant in a lineup. She was also taken to defendant's cab. She sat in it and still could not open the back door from the inside.

Linda L.'s roommate corroborated her account of her rape outcry. She testified that after being buzzed in, Linda L. came screaming down the hall. Her face was very red, her coat was wet and very dirty, and she was carrying her bra and panty hose in her hand. She was hysterical and distraught, saying that she was raped and repeating the number 914 over and over. She also wrote that number on a calendar. The roommate placed a call for Linda L. to a doctor friend. While Linda L. was on the phone the police arrived. The roommate later learned that one of the other tenants had called the police.

It was stipulated that Officer Dennis Vales would testify that at 1:40 a.m. he responded to a report of a woman screaming at Linda L.'s address. He found her to be initially hysterical, but when she calmed down she described her assailant and gave the police the cab number. According to Vales, Linda L. had been drinking.

Other stipulated testimony established that semen was found in vaginal swabs taken from Linda L. She was determined to be a type-O nonsecretor, whereas defendant was a type-B secretor. The vaginal swabs taken from Linda L. contained material from a type-B secretor.

It was also stipulated that if a Detective Davis were called he would testify that at about 2 a.m. on the morning in question he approached defendant's cab at gunpoint and asked if anyone had gotten out of the cab. Defendant said he had had no passengers for several hours. It was stipulated that Detective Gerald Mahon would testify that he observed Linda L. identify the defendant in a lineup. Mahon inspected the defendant's cab and found that the driver's side rear door would not open. The "passenger rear door" was very hard to open, apparently because ice and snow packed in the frame obstructed the door's movement. Mahon's stipulated testimony also indicated that Linda L. told him the defendant had slapped her a number of times to revive her.

When first interviewed by Mahon, the defendant said he was not involved in any rape incident. A second interview was then conducted by Mahon and Assistant State's Attorney Michael Leviton. It was stipulated that Leviton would testify that defendant told them the following. A man flagged him down at Michigan and Delaware. The man placed in the cab a girl who wanted the man to come with her. The girl had her legs wrapped around the man and the man was stroking her face and body. The girl left the cab and defendant took another fare two blocks and then returned to the first location, where the same girl got in the cab. She played with defendant's hair, pulled on his ear, and tried to kiss him. This almost caused an accident and defendant told her to stop. She put her feet over the front seat with her legs spread wide apart. She asked him if he thought she was sexy and told him to look at her. He turned around and she was holding her bra and panty hose, with her blouse unbuttoned, her breasts out, and her skirt up. She told him her mother was a hillbilly and they knew how to make good love. She climbed in the front seat, tried to kiss him and also tried to give him an erection by rubbing him through his pants. She asked if he wanted a "blow job." Defendant told the investigators that he did not know what that was, his mother raised him better than that, so he just took her home. He did not have sex with her. She had no money so he did not get the fare. He would not take her checks because they were not in his name. The girl wanted anybody to go to bed with her. Finally, defendant said that he did not know how long he was with her.

Defendant presented the stipulated testimony of Major Ragland, a Yellow Cab mechanic. He inspected defendant's cab the morning after the incident and found all four doors to be working properly.

It was also stipulated that the act of intercourse described by Linda L. took place in a store front at 4435 West Fullerton in Chicago. It was stipulated that defendant's wife would testify that defendant ran a dog training school called "Love Enforcers" at that location. Finally, it was stipulated that Joseph Mahr, a private investigator, would testify that the most direct route between Linda L.'s home and the store front had 33 stoplights and two stop signs. The defendant did not testify, and he was barred from presenting a statement about the incident made by him to a Yellow Cab insurance representative.

The trial court found the defendant guilty of rape, aggravated kidnaping, and unlawful restraint, However, the latter charge was found to merge into the aggravated kidnaping conviction and judgment was entered only on the offenses of rape and aggravated kidnaping.

Opinion

The main issue before this court is whether the evidence presented at trial was sufficient to remove all reasonable doubt of defendant's guilt and establish with certainty that he was guilty of the crime of rape.

The basis of defendant's argument in seeking reversal of his conviction for rape is that (a) the record on appeal fails to show either forcible intercourse or that the victim offered sufficient resistance; and (b) complainant's testimony was not clear and convincing and lacked adequate corroboration.

We first turn to whether the act of intercourse was consensual or the result of force used by defendant. When examining the amount of force required to sustain a rape conviction, each case must be examined on the basis of its own particular facts. (People v. Warren (1983), 113 Ill. App. 3d 1, 446 N.E.2d 591.) While no definite standard exists fixing the necessary degree of force or the accompanying degree of resistance (People v. Schmitt (1981), 99 Ill. App. 3d 184, 424 N.E.2d 1267), courts have generally held that resistance is not necessary where it is futile or foolhardy, where it would endanger the victim's life, or when the victim is overcome by superior strength or paralyzed with fear (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 431 N.E.2d 1154; People v. Schmitt (1981), 99 Ill. App. 3d 184, 424 N.E.2d 1267; People v. McCann (1979), 76 Ill. App. 3d 184, 394 N.E.2d 1055).

In the instant case, the record reveals that the victim first tried to escape from the defendant by leaving through the rear window of the cab, but the defendant grabbed her and would not let her go. There is also evidence that, as soon as she perceived she was in trouble, complainant feigned illness to protect herself, hoping that it was convincing enough so that defendant would not harm her and would leave her alone. The testimony at trial, however, shows that more physical force and intimidation was to be inflicted on her person as the evening progressed. Upon arriving at the building where the incident took place, defendant pulled complainant out of the cab and carried her inside to a room with a mattress, where he slapped her. He took the victim's clothes off and, after having sexual intercourse with her, slapped her again. When he was ready to leave, the defendant again grabbed the victim by her shoulders and arms, dragged her out of the building and pushed her back into the rear of the cab, where she fell to the floor. After returning the victim to her place of residence, defendant pulled her out of the cab and left her lying in the snow in front of her apartment building.

We find the foregoing facts to amply support the finding of actual force by the trial court. As the trial Judge correctly noted, these are not the acts of a person who would be normally engaging in a consensual act of intercourse. Rather, they are the acts of an individual who, by means of sheer force, subjugates another to carry on his wishes under the threat of harm. We are not persuaded by defendant that the victim's conduct is consistent with that of an intoxicated woman who exercised bad judgment and became embarrassed when she had the opportunity to reflect upon what she had done. Although the complainant stated she was "under the influence of alcohol" the evidence in the record does not support the speculation that she consented to intercourse because she had been drinking. Indeed, in the defendant's fantastic account of the evening no intercourse was alleged to have taken place.

Complainant in the instant case perceived a very real and imminent threat and immediately made up her mind that she was going to resist. Realizing that she could be easily physically overpowered by her assailant, who had already physically kept her from fleeing, she decided to fight back by feigning illness, hoping that defendant would be effectively dissuaded from sexually assaulting her if he saw that she was disabled with epilepsy. As the complainant explained at trial: "I only wanted a chance to get -- to try and be safe from him. I decided if I pretended I was sick that he wouldn't bother me and he'd leave me alone. So that if at anytime I would have stopped doing that he would have known I was just bluffing. Who knows that worse things he might have done? So I had to do it all the way through the same way. I mean it makes so much sense." Defendant argues that this constituted "ambiguous conduct" on the victim's part which did not reasonably manifest resistance. Under the circumstances of this case, however, this conduct does not appear to us to carry any ambiguity or to have been unreasonable. Indeed, the physical intimidation and force wielded by defendant against complainant left her with no other viable means of resistance. These facts are distinguishable from those in People v. Rosario (1982), 110 Ill. App. 3d 1020, 443 N.E.2d 273, cited by the defendant. In Rosario the victim simply did not resist and indicated that it was a lack of language skills (not knowing how to say "help" in English), not the fear of imminent danger that prompted her not to resist. Defendant's claim that the evidence in the instant case failed to show that intercourse was by force or that the victim offered resistance is therefore without merit.

Central to defendant's appeal for reversal of his conviction is also the contention that complainant's testimony at trial was not clear and convincing and that it lacked adequate corroboration. The rule of law governing such issues in rape cases is that the testimony of the victim alone is sufficient to support a conviction for rape if the testimony is clear and convincing. (People v. Luigs (1981), 96 Ill. App. 3d 700, 421 N.E.2d 961.) So long as it is clear and convincing the complainant's testimony need not be corroborated by other evidence. People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285.

Here, the victim's testimony was not only by itself overwhelmingly clear and convincing as to all the facts and circumstances surrounding the rape, but it was also corroborated by an outcry witness and other witnesses. First, the victim herself took the stand and unequivocally recounted that she was unable to leave defendant's cab, was subsequently taken to a location unknown to her, slapped, raped, slapped again, then dragged in and out of the cab and finally left lying in the snow. This testimony was corroborated by an outcry witness who testified that immediately after the incident the victim had come home screaming hysterically that she had just been raped. This witness also testified that she noticed the victim's overcoat was very dirty and wet, that her face was red, and that soon after collapsing on her bed she repeated out loud the number 914 (the license plate number of defendant's cab).

The complainant's testimony concerning her rape was further corroborated by testimony that swabs and smears taken from the victim's vagina and panties revealed the presence of semen. At the hospital the victim experienced tenderness in her vagina and a tampon was found lodged posteriorly in her vagina. According to the victim that tampon had been inserted by her in order to control a vaginal discharge. Common sense leads us to believe that if the victim had consented to intercourse with defendant she would have first removed the tampon in her vaginal cavity. Furthermore, the presence of a tampon lodged posteriorly within the victim's vagina clearly shows that the intercourse between defendant and complainant was forcible.

Courts of review have a special duty of carefully examining the evidence in rape cases. However, in doing so, the court may not encroach upon the function of the trier of fact to weigh the credibility and otherwise assess the evidence which was presented. (People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.) The trial court in the instant case correctly looked at the totality of the evidence in reaching its decision. It found that although there were some inconsistencies in the victim's testimony, these minor discrepancies were not sufficient to render her testimony not credible. Based upon the totality of the evidence the court thus concluded that, as to the crime of rape, the State had convincingly established defendant's guilt beyond a reasonable doubt. We see no reason to disturb the court's holding.

Defendant next contends that the trial court erred in barring from evidence a "corroborating" statement made by him to a Yellow Cab insurance representative. The gist of this statement was that the complainant, while en route to her apartment, had told defendant various personal matters concerning herself and was laughing and acting drunk. Defendant claims the statement was not to be offered for the truth of the matter asserted but rather to show his state of mind on February 22, 1982, the day he made the statement to Yellow Cab's investigator, and, purportedly, before he reasonably had the ability to fabricate the evidence.

We find this argument lacking in persuasion. It appears that defendant offered the out-of-court statement for no other reason than to prove the truth of the matter asserted, in order to bolster his credibility and avoid having to take the stand. Because this statement is clearly hearsay and no known exception to the hearsay rule exists that would allow this statement to be admitted, the trial court did not err in denying its submission into evidence. Further, we need not address the issue of corroboration of defendant's testimony since the defendant did not testify at this trial. (Defendant did testify at an earlier trial after which his motion for a new trial was granted.) Defendant's argument that if his testimony was doubted at trial he had the right to present evidence which corroborated his own story is thus merely an argument based on a hypothetical situation, rather than on what actually happened at trial. Because defendant did not testify at all, there was nothing that could be corroborated by the hearsay statement he sought to introduce.

Lastly, since we have found defendant's conviction for rape was proper, it follows that we must also uphold his conviction for aggravated kidnaping. Kidnaping occurs when one knowingly, by force or threat of imminent force carries a person from one place to another with intent secretly to confine him against his will. (Ill. Rev. Stat. 1985, ch. 38, par. 10-1(a)(2).) A kidnaper, within the definition of section 10-1, is guilty of aggravated kidnaping when he inflicts great bodily harm or commits another felony upon his victim. (Ill. Rev. Stat. 1985, ch. 38, par. 10-2(a)(3).) Here, defendant forced the complainant to remain in the cab and transported her against her will to a building 20 minutes away. Once there, defendant took the victim to the rear of the building and forced her to have sexual intercourse. Defendant's conviction for aggravated kidnaping must therefore stand.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

CASE RESOLUTION

Judgment affirmed.

MINORITY OPINION

JUSTICE PINCHAM, Dissenting:

I Dissent. The convictions should be reversed. There was no evidence that the act of sexual intercourse was by force or against the complainant's will, nor was there any evidence that the complainant resisted. Instead, the evidence established that the act of sexual intercourse was not by force and was not against the complainant's will and that the complainant did not resist.

Count I of the three-count information alleged that on or about February 9, 1982, in Cook County, Illinois, "Raymond J. Dick, a male person of the age of fourteen years and upwards committed the offense of rape in that he had sexual intercourse with Linda, a female not the wife of said Raymond J. Dick, by force and against her will, in violation of Chapter 38, Section 11 -- 1, Illinois Revised Statutes . . .."

Section 11-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11-1(a)) provides:

"A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape." (Emphasis added.)

The defendant was charged in count II with committing on the aforesaid date and place "the offense of aggravated kidnaping in that he, knowingly by force and threat of imminent use of force, carried Linda from one place to another with the intent to secretly confine Linda against her will and committed a felony, to wit: rape upon Linda, in violation of Chapter 38, Section 10 -- 2(a -- 3), Illinois Revised Statutes . . .."

Kidnaping is defined in sections 10-1(a)(1) and (a)(2) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 10-1(a)(1) and (a)(2)) as follows:

"(a) Kidnaping occurs when a person knowingly:

(1) And secretly confines another against his will, or

(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will . . .."

Aggravated kidnaping is defined in section 10-2(a)(3) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 10-2(a)(3)) as follows:

"(a) A kidnaper within the definition of paragraph (a) of Section 10 -- 1 is guilty of the offense of aggravated kidnaping when he:

(3) Inflicts great bodily harm or commits another felony upon his victim . . .."

It was alleged in count III of the information that the defendant on the aforesaid date and place "committed the offense of unlawful restraint in that he, knowingly without legal authority detained Linda, in violation of ...


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