APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
529 N.E.2d 741, 175 Ill. App. 3d 119, 124 Ill. Dec. 760 1988.IL.1390
Appeal from the Circuit Court of Cook County; the Hon. Christy Berkos, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. BILANDIC and EGAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Following a jury trial, defendant was convicted of one count each of aggravated criminal sexual assault and attempt (aggravated criminal sexual assault). The trial Judge sentenced him to 60 years' imprisonment for aggravated criminal sexual assault, ruling that the other charge "merged. "Defendant appeals, raising the following issues: (1) whether the Illinois criminal sexual assault statute (Ill. Rev. Stat. 1985, ch. 38, pars. 12-12 through 12-14) is unconstitutional; (2) whether he was provided with effective assistance of counsel; (3) whether he was denied a fair trial by the trial court's admission of repetitious testimony and improper hearsay; (4) whether there was sufficient evidence to convict him of attempt (aggravated criminal sexual assault); (5) whether the trial court incorrectly instructed the jury; (6) whether certain of the prosecutor's remarks made during rebuttal argument denied him a fair trial; and (7) whether the trial court abused its discretion in sentencing him to 60 years' imprisonment.
Defendant was charged in a 70-count information with having committed various acts of illegal conduct against the complaining witness; however, the State proceeded to trial on only five of the charges, including two counts of aggravated criminal sexual assault, one count of attempt (aggravated criminal sexual assault), one count of aggravated kidnapping and one count of aggravated battery.
At trial the complaining witness testified as follows. On September 10, 1984, Sherry Pulanski, a friend of the complainant's, was struck by a man who broke her nose. The complainant and Pulanski called the police, who took them to Chicago's Holy Cross Hospital. While at the hospital, the complainant decided to go to the home of Pat Sala, another friend, to obtain a ride for herself and Pulanski. She walked from Holy Cross Hospital, located at 67th Street and California Avenue, to Sala's house, some blocks away at 63rd Street and Richmond Avenue. Sala agreed to provide a ride home, but said that since she had company she would wait for the complainant and Pulanski at her home. The complainant then returned to the hospital, but upon arriving at the hospital she was told that Pulanski had already left for Sala's home, so she decided to walk back there.
As the complainant walked northbound on the west side of California Avenue she noticed a large, dark car drive by slowly while the driver, a man whom she later identified as defendant, looked at her. After passing her, defendant turned the car left off California in a westbound direction on 65th Street, and parked in the first space with the car door open and the engine running. He walked onto California Avenue and looked down the street, as if he were searching for something. The complainant continued walking, turning west on 64th Street, and as she approached an alley about a block from Sala's house, defendant grabbed her around the throat, holding a broken bottle in his free hand, with which he cut the complainant's neck and forearm. Defendant ordered her not to scream and told her "I could still fuck you if I cut you."
Defendant dragged the complainant to his car, pushed her in and began driving. Defendant told her "Don't worry, I ain't going to hurt you," and said that he "just wanted to be with a white woman and he wanted to suck on a white woman's titty." The complainant did not see the broken bottle once they were in the car, but did notice a red pen glued to the dashboard of the car and the word "Deville" on the glove compartment. She picked up a Kleenex defendant had used to wipe his bleeding hand, but defendant grabbed it from her and threw it out the car window as he drove down an alley. He then stopped the car, parking so that the passenger door was against a garage and could not be opened. Defendant pulled the complainant's shirt up and removed her bra, then began sucking on her breast. The complainant tried to push defendant away, and told him that she was pregnant and had a venereal disease. Defendant pulled her pants and underwear down to her knees, inserted one of his fingers into her vagina and then placed his mouth on her vagina.
After hearing a noise nearby, defendant told the complainant to pull her pants up and he started the car. Defendant refused to let her out of the car, but asked her where she was going. She did not want to tell him where her friend lived, so she said that she had been going to 63rd Street and California Avenue, where he then took her. When defendant let the complainant out of the car he told her not to go to the police and not to look back at him as he drove away. However, she did look back and memorized defendant's license plate number; she then ran to a gas station and called the police. After telling the police what had happened, they drove her to an alley behind a house where she identified defendant and his car, noting particularly the red pen glued to the dashboard of the car and the word "Deville" on the glove compartment.
On cross-examination, the complainant admitted that a few years previously she had been convicted of two counts of possession and one count of delivery of a controlled substance. She denied having taken any drugs on the night of the incident.
Officer Robert Mantia testified for the State that he and his partner, Kenneth Abels, responded to the complainant's call. After detailing what she had told him about the incident, Mantia testified to the events leading up to defendant's arrest. Officer Abels testified that he brought the complainant back to the scene of the incident, where he found a blood-soaked Kleenex. Officer Ellis-Williams testified that the blood on the Kleenex was type AB, which was defendant's type, and that the complainant had type O blood. Officer Kulak testified that he received the complainant's call and that based on the license number she provided, he determined the name and address of the owner of the car defendant drove. He called the owner of the car and was told that the owner's son had just brought the car home. When viewing the car he noticed that there was blood on the front seat.
The defendant testified that on September 10, 1984, he was driving northbound on Western Avenue when he saw the complainant hitchhiking. He stopped and offered her a ride if she "wouldn't mind [his] nibbling on her breasts." The complainant hesitated, but then got into his car. They drove to an alley, talked awhile, and then the complainant lifted up her blouse and defendant proceeded to suck on her right breast. He then drove her to the area of 63rd Street and California, where she got out of the car. He specifically denied forcing the complainant into the car, threatening her with a broken bottle, removing her pants, inserting his finger in her vagina or placing his mouth on her vagina.
After being sequestered for a night, the jury returned a verdict finding defendant guilty of aggravated criminal sexual assault and attempt (aggravated criminal sexual assault) and acquitting him on the remaining charges. After hearing evidence on aggravation and mitigation, the trial court sentenced defendant to a single term of 60 years, merging the count of attempt (aggravated criminal sexual assault) with the count of aggravated criminal sexual assault. Defendant appeals.
Defendant contends that the criminal sexual assault statute (Ill. Rev. Stat. 1985, ch. 38, pars. 12-12 through 12-14) is overbroad and void for vagueness. That statute provides in part as follows:
"12 -- 12. Definitions. . . .
(d) 'Force or threat of force' means the use of force or violence, or the threat of force or violence, including but not limited to the following situations:
(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or
(2) when the accused has overcome the victim by use of superior strength or size, physical restraint or physical confinement." Ill. Rev. Stat. 1985, ch. 38, par. 12-12.
"12 -- 13. Criminal Sexual Assault. (a) 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.
"12 -- 14. Aggravated Criminal Sexual Assault. (a) 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:
(1) the accused displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon." (Ill. Rev. Stat. 1985, ch. 38, par. 12-14.)
Defendant contends that "one cannot engage in sexual intercourse without some amount of physical force," and "because the definition of force is not limited to that amount required to make an unwilling partner acquiesce in participating in sexual conduct . . . [the statute] could subject an individual to conviction and punishment for the offenses of criminal sexual assault and aggravated criminal sexual assault for engaging in private consensual sexual activities which are protected by the right to privacy guaranteed by the Fourteenth Amendment."
The Illinois Supreme Court addressed this argument in People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45, in which it upheld the constitutionality of the statute, stating:
"[We] consider that a person of common intelligence and experience can distinguish, without difficulty, between sexual acts accomplished by force, as that term is meant in the statute, and, for example, sexual ...