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07/27/88 the People of the State of v. Gary Leonhardt

July 27, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY LEONHARDT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

527 N.E.2d 562, 173 Ill. App. 3d 314, 123 Ill. Dec. 99 1988.IL.1156

Appeal from the Circuit Court of Cook County; the Hon. Ronald J. P. Banks, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

In a bench trial, defendant, Gary Leonhardt, was found guilty of rape, deviate sexual assault, and unlawful restraint. He was sentenced to six years for rape, six years for deviate sexual assault and three years for unlawful restraint. The sentences are to be served concurrently in the Illinois Department of Corrections. Defendant contends that (1) the information charging him with rape was fatally deficient; (2) he was not proven guilty beyond a reasonable doubt; and (3) he was denied a right to present a defense. We affirm.

On August 13, 1983, the victim (Vic), was 26 years old. At about 7 p.m., Vic and her roommate were at a picnic in Schiller Woods, Cook County. Vic was dressed as a cocktail waitress because she was employed as such at a lounge and was due at work at 9 p.m. She intended to leave the picnic and go directly to work. While Vic was at the picnic, she met defendant, age 19, for the first time. Defendant agreed to drive Vic to work on his motorcycle. At about 8:15 p.m., Vic and defendant left the picnic on the motorcycle, with the intention of going to Vic's workplace. Defendant drove east on Irving Park Road and turned south on River Road. They stopped for gas at a gas station. Vic wanted to use the washroom, but it was out of order.

After they left the gas station, defendant and Vic began traveling on the motorcycle in the direction of Vic's workplace. Vic told defendant that she had to use the washroom and that she could not wait until she arrived at work. Defendant then turned off the roadway and proceeded onto a gravel bike path into the forest preserve. After defendant stopped, Vic went off the path and into the weeds, to a distance where neither she nor defendant could see each other. Vic then urinated. When Vic returned to the bike path, she saw defendant urinating in front of his motorcycle. Vic stated, "Okay, I am ready to go to work now." Defendant grabbed her arm tightly and told her that she was not going to work but was going to stay with him. Vic said that she wanted to go to work. Defendant started kissing her and trying to take off her shirt. Vic started crying and shaking, and she "kept telling him, just take me to work, that I needed to go to work." Defendant told Vic that "he wanted to fuck," and that she "would like it." Defendant grabbed her arm and pulled her to the side of the path and tried to undo her clothes. Vic said that she would do whatever he wanted if he would just not hurt her. She untied her shirt and defendant grabbed her leotard and pulled it down to her waist. He grabbed her breasts and began squeezing them tightly. Vic kept begging him to just take her to work. Defendant pushed her onto the gravel, grabbed the back of her head, pushed her face toward his penis and put his penis into her mouth. Defendant then pushed her onto the gravel and ripped off her pantyhose. He then had sexual intercourse with Vic and eventually ejaculated on her stomach.

Vic told defendant that the gravel and rock were hurting her back. Defendant rolled over and put Vic on top of him. It then appeared that defendant fell asleep. Vic got up, grabbed her clothes and although she was half naked, she started to run toward the road. Defendant chased her and grabbed her neck and began choking her. He then hit her twice in the face and she almost passed out. Defendant then put Vic back on the motorcycle and drove into the woods. He stopped when he reached a grassy area with picnic tables. Vic was scared because she thought that he was going to dump her into the river. Defendant and Vic sat on a picnic table and defendant said that "he wanted to fuck her in the ass," and he proceeded to have anal intercourse with Vic. Afterwards, defendant had sexual intercourse with her.

Later, defendant put Vic back on the motorcycle and they rode to another picnic area where Vic began crying and shaking. Defendant then had sexual intercourse with Vic again. When defendant fell asleep, Vic ran out to the road and flagged down a police car. She told the two police officers that she had been raped and beaten. A police officer and Vic went to the picnic area where the last attack took place, and defendant was arrested. Vic was taken to a hospital where she was examined and her injuries were photographed. The record reflects that Vic had dark bruises on her breasts, substantial scratches on her back and buttocks, her left eye and left cheek were swollen and Vic had minor scrapes on her knees and feet. The police officers testified that when they first saw Vic, her clothes were soiled and disheveled, the left side of her face was swollen and she seemed nervous and upset.

Defendant first contends that the information charging him with rape is insufficient because (1) the evidence is that defendant and Vic had sexual intercourse three times on the same day but the information does not specify time or place and (2) it does not protect him from double jeopardy. The information states that "on August 13, 1983, in Cook County, Illinois, Gary A. Leonhardt, a male person of the age of fourteen years and upwards committed the offense of rape in that he had sexual intercourse with [the victim], a female not the wife of said Gary A. Leonhardt, by force and against her will, in violation of Chapter 38, Section 11 -- 1 -- A, Illinois Revised Statutes."

Defendant did not claim that the information charging him with rape was insufficient during trial or in his post-trial motion. The State therefore contends that defendant waived any claim that the information charging him with rape was deficient. We reject the waiver argument. (People v. Vaughn (1985), 136 Ill. App. 3d 342, 483 N.E.2d 417.) However, when the sufficiency of a charging instrument is attacked for the first time on appeal, the charging instrument will be upheld as sufficient if it apprised the defendant of the offense charged with sufficient particularity to have enabled him to prepare his defense and to plead the resulting conviction as a bar to future prosecution. People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440; People v. Johnson (1979), 69 Ill. App. 3d 248, 250, 387 N.E.2d 388, 390.

Here, we believe it is clear that the information charging defendant with rape apprised him of the offense with sufficient particularity to have enabled him to prepare his defense. Initially, we observe that the information plainly establishes the date and county of the offense, nature and elements of the charge, and defendant's name. Moreover, the information is worded in the terms of the statute which sets forth the elements of the offense. Ill. Rev. Stat. 1983, ch. 38, par. 11-1(a) (repealed by Pub. Act 83-1067, § 28, eff. July 1, 1984 (now Ill. Rev. Stat. 1987, ch. 38, par. 12-13)).

In addition, during the pretrial course of the case, defendant filed a motion for discovery and requested a bill of particulars in which he requested the time and date of the occurrence, as well as the street address and physical description of the occurrence site. The State complied with the requests made in defendant's motion for discovery and answered the request for a bill of particulars by stating that the ...


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