APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
Appeal from the Circuit Court of Cook County, Honorable Robert L. Sklodowski, Judge Presiding.
McMORROW, JIGANTI, P.J., and JOHNSON, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW
JUSTICE McMORROW delivered the modified opinion of the court upon denial of the Petition For Rehearing:
Following a jury trial, defendant Anthony Coleman was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14) and attempted armed robbery. (Ill. Rev. Stat. 1985, ch. 38, par. 8-4.) He was sentenced to an extended term of forty years imprisonment with respect to the aggravated criminal sexual assault conviction and an extended term of twenty years with regard to the attempted armed robbery offense, sentences to run concurrently.
On appeal, defendant raises numerous questions for review. He challenges the constitutionality of the Criminal Sexual Assault Act (Ill. Rev. Stat. 1985, ch. 38, pars. 12-1 et seq.) on the grounds that (a) the Act is overbroad and void for vagueness in violation of due process, (b) the Act's consent defense is vague in violation of due process, and (c) the Act's consent defense required defendant to prove the victim's consent beyond a reasonable doubt, in violation of due process.
Defendant also argues that errors in the jury instructions necessitate a new trial. He contends that the instructions violated due process because they required defendant to prove the victim's consent beyond a reasonable doubt, and did not inform the jury that it was the State's burden to prove lack of consent beyond a reasonable doubt. Defendant also maintains that the jury should have been instructed on the offense of criminal sexual assault, on the premise that criminal sexual assault is a lesser included offense to aggravated criminal sexual assault.
Defendant further attacks the fairness of his trial on other grounds. He asserts that the State failed to comply with his discovery request for the past criminal records of the State's witnesses, thus prejudicing his defense at trial. He also claims that he received ineffective assistance from his trial attorney, who, inter alia, demanded trial before he had read the Criminal Sexual Assault Act or the indictment filed against the defendant.
With respect to the validity of his convictions and the sentences imposed therefor, defendant argues that the mittimus shows that he was convicted of three counts of aggravated criminal sexual assault. Defendant maintains that because all three convictions are based on the same physical act, two of the assault convictions must be reversed. He further contends that remand for resentencing is required with regard to the remaining aggravated criminal sexual assault conviction. Also, defendant asserts that the extended term sentence for attempted armed robbery must be reduced, and that remand for resentencing is appropriate with respect to that offense as well.
Defendant was convicted for the aggravated criminal sexual assault and attempted armed robbery of an adult woman in Chicago on September 3, 1984. The victim was walking alone on a sidewalk at about 1:30 a.m. A man who had been walking behind her, whom she later identified as the defendant, approached her, told her his car had broken down, and walked along side her. As she came to the back porch of her house, the defendant grabbed her, put a knife to her throat, and demanded money. The victim stated she had no money, and opened her purse to show him. The defendant then forcibly led the victim to a nearby garage, where he sexually assaulted her. Thereafter he forcibly led her out of the garage and through to the street, where he eventually released her.
Lamar Taylor (Taylor) testified at trial that he was walking on the other side of the street, in the opposite direction, as he saw a man whom he later identified as the defendant approach the victim. Taylor also saw the defendant when the defendant first grabbed the victim, and later as the defendant led the victim at knifepoint across a street. He followed, but could not locate the victim or the defendant.
An officer of the Chicago Police Department testified that, in response to a radio call of a man requesting help, he and his partner drove to the area, spoke to Taylor, and searched garages and backyards. The officers noticed a man running, pursued him, and apprehended him under a porch. The officers identified defendant as that individual. One of the officers had also discovered the victim during pursuit of the ...