APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
535 N.E.2d 1097, 180 Ill. App. 3d 396, 129 Ill. Dec. 332 1989.IL.288
Appeal from the Circuit Court of Cook County; the Hon. Philip J. Carey, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
Following a jury trial, defendants, Michael Allman and Thomas Allman, were convicted of aggravated criminal sexual assault, aggravated battery and unlawful restraint. Michael Allman also was convicted of robbery. Defendants each were sentenced to concurrent imprisonment terms of 10 years for aggravated criminal sexual assault, seven years for aggravated battery, and two years for unlawful restraint. Michael additionally received a six-year concurrent sentence for robbery. Defendants appeal, alleging that the State did not prove them guilty of aggravated criminal sexual assault, or Michael Allman guilty of robbery, beyond a reasonable doubt; that they improperly were convicted of the lesser included offenses of aggravated battery and unlawful restraint as these convictions arose from the same conduct as did the conviction for aggravated criminal sexual assault; and that the seven-year sentence for aggravated battery was imposed unlawfully.
The victims testified to the following facts. On July 2, 1984, the female victim met the male victim at his mother's home. They stayed there for a few hours, talking and drinking beer. At approximately 9:30 or 10 p.m., they walked to a bar and split a drink. They then hitchhiked to another bar, where they each had two drinks. They then proceeded to a third bar, arriving at approximately 2:30 or 3 a.m.
There, the victims struck up a conversation with the two defendants and four other individuals. Each of the victims consumed four drinks while at the bar. Paul Joyce, one of the individuals with defendants, began to talk to the male victim. Later, Joyce danced with the female victim.
The victims left the bar at 4 a.m. The female victim had asked Joyce if she and the male victim could have a ride home. The victims entered the automobile with the two defendants, Joyce, and three men who also were with defendants. The car was driven by one of the other men. The two defendants were seated in the front. The victims were in the back seat, the female victim on Joyce's lap.
Michael Allman directed the driver to proceed to Oak Lawn, where the male victim lived. At 92nd and Harlem, Michael directed the driver to pull off onto the gravel road. The men exited the vehicle to urinate. The female victim remained near the vehicle. The male victim walked away from the car but started back when he heard the female victim cry out. The female victim testified that Joyce had been touching her shoulders and breasts. The male victim put his arm around the female victim and suggested that they leave. Michael then hit the male victim on the side of the head and forced him to walk to some bushes located 20 to 30 feet away from the vehicle.
The male victim testified that Michael ordered him to give up his money. Michael threatened to kill him if he refused. When the male victim told Michael that he did not have any money, Michael went into the male victim's pants pocket and pulled out his wallet. Defendants then pulled off his pants and boots. The male victim indicated that he could not get up because he constantly was being punched and kicked in the head.
The male victim stated that at some point he lost consciousness. He next recalled that he was pulled onto the gravel road and was placed on his stomach. He stated that someone took a shoe and tried to shove it into his anus. He could not identify who had done this. He further stated that he then felt a penis in his anus, but again could not identify who had done this. He additionally felt someone urinate on his back. He lost consciousness again and when he awakened, defendants and the other individuals were beating and kicking him and he could hear them laughing.
The female victim testified that after the male victim suggested they leave, she was hit in the back of the head and she fell to her knees. Although she could not see who hit her, both defendants were standing near her. One of the other men came over and forced her to perform oral sex on him for several minutes. During this time, she could hear the male victim screaming. Joyce and Michael then began beating her about the head and face with a hard object. Someone pulled her pants off and got on top of her. She believed that it was Michael. She felt Michael trying to penetrate her with his penis. Another man and Joyce also attempted to have sexual intercourse with her. She then lost consciousness. When she awakened, she was being beaten by both defendants, Joyce, and two of the other men. She stated that she was struck on her head, body and anus with a hard object.
After defendants and the other individuals left, the male victim got up to look for the female victim. He picked her up off the ground and they walked down Harlem to get help. Both were naked from the waist down. They eventually gained entry to a building on Harlem, and ...