APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
547 N.E.2d 1256, 190 Ill. App. 3d 992, 138 Ill. Dec. 635 1989.IL.988
Appeal from the Circuit Court of Cook County; the Hon. Jack G. Stein, Judge, presiding.
PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and QUINLAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
Defendant stands convicted of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14) and one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4). He appeals, claiming that: (1) he was denied a fair trial when the Judge referred to the complaining witness as "dear" in the presence of the jury; (2) the State failed to prove the defendant's guilt beyond a reasonable doubt; (3) the trial court should have instructed the jury on the lesser included offense of criminal sexual assault; (4) the Illinois criminal sexual assault statute is overbroad and void for vagueness; (5) the trial court erred by sentencing the defendant for four counts of aggravated criminal sexual assault and one count of aggravated battery where defendant committed only one offense; and (6) the trial Judge abused his discretion by sentencing the defendant to concurrent 10-year sentences.
The defendant, Michael Rodarte, and the complaining witness were co-workers at a bar and restaurant known as Findley's Pub. The defendant was a doorman and the complainant was a waitress. On October 16, 1985, both parties were scheduled to work; however, the defendant was given the night off due to slow business. He remained on the premises to celebrate another co-worker's birthday.
The defendant drank heavily and became intoxicated at the celebration; the complainant had one drink. He offered the complainant a ride home, but she drove the defendant's car because he was too drunk to drive. While driving to her apartment, the complainant was stopped by a Chicago police officer. The defendant then drove the remaining distance to the complainant's apartment.
On the evening in question the defendant was wearing a pair of loosely fitting, blue khaki pants, a white Findley's jacket, which had a small blue logo on the front and a large logo on the back, and the complainant was wearing jeans, a sweater, a sleeveless T-shirt and an oxford shirt.
The complainant testified that since the defendant felt too ill to drive she offered to let him sleep on the couch in the apartment she shared with three female roommates. There were no lights in the apartment when they entered, and her roommate Jamie was asleep on the floor. The complainant walked to the bedroom which she shared with Linda, said hello to Linda, who was asleep, and returned to the living room. She showed the defendant the bathroom and instructed him to rest on the couch.
As she walked back to her bedroom, the defendant followed her. He asked whether he could sleep in another room which was off the hallway. She told the defendant that that was her roommate Cathy's room and that she did not know whether Cathy was at home. When she stepped into Cathy's room and turned on the light, the defendant forced her inside and shut the door. He ripped her oxford and T-shirt open, removed her sweater and pushed her face down into the bed. She tried to make noise, but the defendant covered her mouth and hit her repeatedly in the face. During this beating, she lost consciousness for several seconds. The defendant then gagged her mouth and tied her hands behind her back and removed her shoes, pants and panties. He pulled his pants down to his knees, placed his mouth over her breasts and forced his fingers into her vagina and anus. The defendant inserted his tongue into her vagina and his penis touched her vagina and anus, but there was no penetration.
After performing these acts, the defendant put her pants back on and buttoned a sweater around her shoulders. He dressed and forced the complainant to leave the apartment barefoot while still bound and gagged. He walked her out of the apartment building and pushed her into a garbage dumpster.
The complainant was in the dumpster for approximately five minutes when Steven Avery, a neighbor, arrived and rescued her. He took the gag from her mouth and cut her hands loose. He then took her to his apartment, where they waited for the police to arrive. As a result of the beating, the victim had blurred vision in one eye for two months.
Steven Avery testified that he lived in the same apartment building as the complainant and that on October 17, 1985, he returned home from work at approximately 2:30 a.m. While unloading his car he saw a 5-foot 8-inch heavy-set male wearing tight jeans, a T-shirt and a light-colored jacket which did not have any writing on it, standing in a hallway. He identified the defendant as that man. Mr. Avery walked to his apartment and then returned to his car. He saw the man a second time in the hallway about 10 feet from the rear door of the apartment building. He went back to his apartment and returned with a knife and his dog, but the man was gone. He walked to the rear doors, where he heard a woman's muffled voice calling out what sounded like the name "Mike." As he opened the rear door he saw two feet sticking out of a garbage dumpster. He opened the dumpster and found the complainant bound, gagged and beaten. He called the police and then rescued the complainant from the dumpster and cut her hands loose. They went to her apartment and waited for the police to arrive.
Chicago police officer Chris Sorozco testified that on the morning of October 17, 1985, he received radio information about a rape. He went to the given address where he was met by Steven Avery. Mr. Avery took Officer Sorozco to his apartment, where he talked with the victim. The complainant appeared to be in a state of shock and told him that she was raped by a co-worker named Mike. Officer Sorozco took her to the dumpster and then back to her apartment. The door was opened by her roommate Linda, and her other roommate was asleep on the living room floor. He gathered evidence and took the complainant to the hospital.
Daniel Steinhauer, general manager of Findley's Pub, testified that he was at the pub on October 16, 1985. The uniform jacket that the defendant wore that evening was a white baseball-style jacket, with a six- to seven-inch blue "Findley's" logo on the front and a 12-inch multicolored logo on the back. He testified that the defendant was ...