APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
537 N.E.2d 1080, 182 Ill. App. 3d 313, 130 Ill. Dec. 751 1989.IL.547
Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.
JUSTICE McNAMARA* delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
Following a jury trial, defendant Karl Roberts was found guilty of aggravated criminal sexual assault and criminal sexual assault. The trial court entered judgment on the aggravated criminal sexual assault count and sentenced defendant to an extended term of 60 years' imprisonment. Defendant appeals, contending that the jury was not instructed that the State must prove the element of non-consent beyond a reasonable doubt; that the State failed to establish the element of bodily harm; that the trial court improperly admitted statements regarding defendant's recent release from prison; and that the extended term sentence is improper.
The victim testified that on June 28, 1985, she left her home at about 8:30 p.m. with two girl friends, Lucille Walker and Janell Fletcher. In the early morning hours, the victim and Lucille met defendant and Tina Hicks outside of a tavern. Lucille and Tina knew defendant, but the victim did not know him. The victim left the tavern to walk home alone. The victim and Lucille testified that defendant followed the victim. Lucille testified that when the victim left the tavern she had no facial swelling, no arm injuries, and was fully dressed.
The victim, who is four feet nine inches tall and weighs 108 pounds, testified that defendant approached her from behind, demanded sex, put one hand over her mouth and the other hand around her waist, and dragged her into an alley. When the victim screamed, defendant threatened to kill her. The victim testified that defendant said he wanted sex because "he had just got out of the penitentiary, and I was going to give him some."
The victim testified that defendant struck her on the left side of her face with his fist, and threw her down to the cement, where she scraped her right elbow. Defendant ripped off some of her clothes. Defendant forced vaginal intercourse and then fellatio upon the victim. When the victim resisted again, defendant threw her back down onto her hands and knees and again raped her vaginally.
The police responded to a telephone call reporting the victim's screams and drove into the alley at 3:30 a.m. Officer Ivan Jefferson observed defendant jump up, pull on his pants, and run. The victim emerged from the garage area wearing shoes and a shirt, and crying hysterically. The victim told Jefferson she had just been raped, and she described defendant. The victim was treated at the hospital and returned home at about 5:45 a.m. on June 29. Later that day, she noticed her face was swollen. That afternoon, Tina gave defendant's name to the victim, which she in turn gave to the police. On June 30, she identified defendant in a photo array.
Upon learning that defendant had just been released from the penitentiary, Officer Kenneth White was able to obtain a last known address, which was several doors away from where the rape occurred. The Illinois Department of Corrections parole division gave the police a current address, and defendant was arrested. On July 1, the victim identified defendant in a lineup.
Lena Guiterrez, an emergency room nurse, testified as to the victim's care after she was brought to the hospital. She told Guiterrez she had been raped and hit in the face. The victim's right elbow was bandaged, and she received a tetanus shot. Officer Rick Roberts testified that the vaginal smears tested positive for the presence of spermatozoa.
At trial, defendant testified that he and the victim walked away from the tavern arm in arm and he agreed to pay her $10 to have sex with him. They had sex in a stranger's backyard, but the victim then demanded more money. She threatened that he would pay one way or another. Defendant denied that he ejaculated. When they had finished, they both dressed and left in different directions. Defendant did not tell this to the police because he did not have proper counsel. He denied telling the victim he had just been released from prison; however, defendant stated he had been released on March 22, 1985.
In rebuttal, an assistant State's Attorney testified that he interviewed defendant on July 1, 1985. Defendant stated that he did not have sex with the victim and that they parted company when they reached the alley.
Defendant initially contends that the jury instructions were inadequate as a matter of law because they required defendant to prove consent beyond a reasonable doubt. The jury ...