Find Legal Information

SIXTH DIVISION
July 27, 2001

Following a bench trial, defendant, Steven Herring, was convicted of two counts of homeinvasion and four counts of aggravated criminal sexual assault. He was sentenced to six years'imprisonment for each count of aggravated criminal sexual assault, with the terms to runconsecutively, and one year's imprisonment for home invasion, to run concurrently. Defendantappeals his conviction arguing that he was not proved guilty beyond a reasonable doubt of fourseparate acts of aggravated criminal sexual assault where there was testimony as to only threeacts of penetration. We also granted defendant's request to file a supplemental brief in which hecontends that the recent decision by the United States Supreme Court, Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), requires his sentences to runconcurrently because he was not afforded a jury determination of the aggravating factors used toenhance his sentence. We affirm.

The standard for reviewing the sufficiency of the evidence in a bench trial is the same asit is in a jury trial. People v. Howery, 178 Ill. 2d 1, 38, 687 N.E.2d 836, 854 (1997). Thereviewing court applies the reasonable doubt standard as set forth in People v. Collins, 106 Ill. 2d237, 478 N.E.2d 267 (1985). This standard of review is whether, after viewing the evidence inthe light most favorable to the prosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261, 478N.E.2d at 277. This standard is applicable in all criminal cases, regardless of whether theevidence is direct or circumstantial, and allows the trier of fact to resolve conflicts in thetestimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimatefacts. People v. Campbell, 146 Ill. 2d 363, 374-75, 586 N.E.2d 1261, 1266 (1992). Under thisstandard, we will not reverse a criminal conviction unless the evidence is so unreasonable,improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant's guilt.Campbell, 146 Ill. 2d at 375, 586 N.E.2d at 1266. This test has not been met in the present case.

In making its ruling, the trial court found that the victim in this case was absolutely andtotally credible and that her testimony was compelling, honest, and straightforward. The courtfurther noted that the victim's testimony was corroborated by both a security officer and a policeofficer, as well as the stipulated medical testimony. The court determined that these factors, inaddition to the physical evidence and in further consideration of the "absolutely and totallyincredible testimony of the defendant," led to the court's decision that the State had met itsburden of proof.

The court went on to state as follows:

"I just want the record to be perfectly clear that I find there were 4 separateindividual sex acts; the two that occurred in the apartment, and the two thatoccurred in the basement cellar, for lack of a better way of describing the roomwhere those later in time sexual offenses occurred."

It is defendant's position that the State failed to sustain its burden as to the second of the twooffenses that occurred in the apartment.

The victim in this case was a 31-year-old woman who lived alone in a second-floorapartment in Chicago. On April 27, 1998, the victim was sitting on the toilet with the bathroomdoor open. She heard a loud noise and saw defendant running towards her. She jumped up andtried to push the door closed, but defendant pushed it open. The victim screamed and banged onthe wall to try to tell her neighbor to call the police. She then grabbed the toilet lid and hitdefendant on the head with it. Defendant grabbed the victim by the neck and choked her. Hetold her that if she kept screaming, he would kill her. He punched her in the face with his closedfist. He hit her in her lip and face. As they were fighting, they fell to the floor. The victim thengrabbed a bleach bottle from underneath the sink and threw bleach in defendant's face. She thentried to escape to the front door, but defendant grabbed her by the back of her hair and pulled herinto the living room. The victim also testified that, at the time defendant was moving her to theliving room, she saw a knife in his hands. Once in the living room, a struggle ensued. Thedefendant and the victim tripped over the coffee table, knocking out the glass top. The victimfell on the couch. Defendant told the victim to "shut up" and called her a "bitch."

It was at this point that the defendant then committed the first of the four sexual offenses. Regarding the first sexual offense that occurred inside the apartment, which is not at issue in thisappeal, the victim testified as follows:

"Q. What happened next while you were in the living room on the couch?

A. He started trying to pull my shirt off.

Q. Now at the time that's going on, tell the Judge what it was that you werewearing at the time?

A. I was wearing a black, like a - like a black whole piece cat suit.

Q. Is it a whole one piece outfit?

A. Yes.

Q. When he started to remove your clothes what did he do?

A. He was pulling it, pulling it down.

Q. Did he manage to do anything with the clothes?

A. Yes.

Q. What did he do?

A. He ripped it.

Q. And then what happened?

A. That's what [sic] he started like unbuttoning his pants.

* * *

Q. When you say he was doing something with his pants, what did he do?

A. He unzipped him.

Q. He unzipped them? Did he lower them or just unzip them?

A. He unzipped them.

Q. Did he do anything once the pants were unzipped?

A. He took out his privates.

Q. When you say his 'privates,' what part of his body did you see?

A. His penis.

Q. Once his penis was out did anything happen?

A. Yes. He tried to start putting it in my mouth.

Q. Did his penis ever actually make contact with your mouth?

A. Yes.

Q. What happened after his penis made contact with your mouth?

A. I was trying to bite it."

With respect to the second sexual offense that took place inside the apartment, the victim thencontinued to testify as follows:

"Q. Then what happened?

A. That's when I - we was struggling. And then when he got a chance topull the rest of my stuff off like down to my lower area right here (indicating).

Q. How low?

A. Low being like to my waist.

THE COURT: Indicating for the record she's indicating her waist area.

MR. O'REILLY [Assistant State's Attorney]: Thank you.

Q. Then what happened? Or let me ask you this. Strike that. At this pointare you still in the living room?

A. Yes.

Q. What happened next?

A. That when we was on the floor again. Then he was like over me then.

Q. Okay. Describe the positioning. If you were on the floor, who iswhere?

A. I was laying back. He was on top of me like his knees. I mean he waslike over me. Like I was laying down; he was over me. And he had me still, likechoking me and stuff.

Q. When you say he was over you, was each of his legs on either side ofyou lying over you?

A. Yes.

Q. And when you say you were lying on the ground, are you lying face upor face down?

A. Face up.

Q. With your face up. Is that in a position where you'd be able to see him?

A. Yes.

Q. What happened once you're on the floor and he was in that position?

A. He still was trying to pull my clothes. He was pulling my clothesdown.

Q. Did he get your clothes lower?

A. Yes.

Q. How much lower did your clothes go?

A. To about here (indicating).

Q. Where is that? Describe it on your body?

A. Like below my knees.

Q. Below your knees?

A. Uh-huh.

Q. Okay. And what happened once your clothes were now below yourknees?

A. He was pulling his clothes, pulling his clothes down, trying to stick histhing in.

Q. When you say stick his 'thing,' what are you referring to.

A. His penis.

Q. Okay. Did he do anything with his penis at that point?

A. No because we was like fighting. So he never did get a chance to reallydo anything. And at that time I was tussling with him and -

Q. Let me ask you what you mean by tussling?

A. Like fighting, like fighting, scratching. He was like choking me. Hishands on my mouth. So I was kind of like grabbing him so he would get off ofme, like grabbing him.

Q. Okay. What happened now?

A. That's when I had a chance to get up."

Defendant argues that this testimony regarding the second of the four sexual offenses, viewed inthe light most favorable to the prosecution, clearly does not prove any penetration occurred. Defendant is wrong.

In order to find a defendant guilty of the offense of aggravated criminal sexual assault, thetrier of fact must find that the accused committed an act of sexual penetration by the use of forceor threat of force, and the accused caused the victim bodily harm or has displayed, threatened touse, or has used, a dangerous weapon. People v. Washington, 240 Ill. App. 3d 688, 704, 608N.E.2d 546, 556 (1992). Sexual penetration is defined as:

"[A]ny contact, however slight, between the sex organ or anus of one person by an object, the sexorgan, mouth or anus of another person, or any intrusion, however slight, of any part of the bodyof one person * * * or object into the sex organ or anus of another person * * *." 720 ILCS5/12-12(f) (West 1998).

It has been noted that the inclusion by the legislature of the words "any contact, howeverslight," as part of the definition of "sexual penetration" is contrary to the commonly understoodmeaning of penetration. People v. Hope, 142 Ill. App. 3d 171, 491 N.E.2d 785 (1986). Thelegislature has chosen to enlarge an element of the crime of rape so that contact of sexual organsbetween an accused and a victim will have the same legal effect as the penetration or actualentering the body of the victim. Hope, 142 Ill. App. 3d 171, 491 N.E.2d 785.

Thus, the statutory definition of "penetration" does not require physical penetration butmerely requires contact. People v. Moore, 199 Ill. App. 3d 747, 773, 557 N.E.2d 537, 555 (1990). Even in the absence of proof of actual penetration, proof of even the slightest contactbetween sex organs is sufficient to prove the element of "sexual penetration." People v.McIntosh, 305 Ill. App. 3d 462, 471, 712 N.E.2d 893, 900 (1999); see also People v. Hebel, 174Ill. App. 3d 1, 31-32, 527 N.E.2d 1367, 1386-87 (1988) (the State does not have to show anypenetration of, or even contact with, a woman's vagina, since under the statute a woman's "sexorgan" includes all of her genitalia); People v. Bofman, 283 Ill. App. 3d 546, 552, 670 N.E.2d796 (1996) (actual penetration is not an element of criminal sexual assault, because the slightestcontact between sex organs is sufficient to prove "sexual penetration"); People v. Moore, 199 Ill.App. 3d 747, 773, 557 N.E.2d 537 (1990) (same).

Defendant claims that, from the evidence, it is unreasonable to infer that penetrationoccurred. He asserts that the victim's testimony that "he never did get a chance to really doanything" meant no "penetration" occurred. Although acknowledging the legal definition of"sexual penetration," defendant's argument that no "penetration" occurred incorrectly relies uponthe word "penetration" as it is commonly understood. In addition, defendant's argument thatbecause the victim never "stated" that any "contact" actually occurred means that it would beunreasonable to infer that penetration occurred might be valid if the statute required actualphysical penetration, but it does not. The issue of whether penetration occurred is a question offact to be evaluated by the trier of fact, and a lack of detail in a witness' testimony only affects theweight of the evidence. People v. Shum, 117 Ill. 2d 317, 356, 512 N.E.2d 1183, 1198 (1987);People v. Bell, 234 Ill. App. 3d 631, 636, 600 N.E.2d 902, 906 (1992). Based upon the victim'stestimony that defendant was choking her, over her with his knees, had exposed both her sexualorgan and his own sexual organ and was at the same time "trying to stick his thing in," clearly arational trier of fact could have found the essential elements of aggravated criminal sexualassault, including sexual penetration, i.e., "contact, however slight," beyond a reasonable doubt.

Our supreme court has long held that it is the function of the trier of fact to determinecredibility of the witnesses, the weight to be given their testimony, and the inferences to bedrawn from the evidence. See, e.g., People v. Bull, 185 Ill. 2d 179, 204, 705 N.E.2d 824, 837(1998); People v. Akis, 63 Ill. 2d 296, 298, 347 N.E.2d 733, 734 (1976). When weighing theevidence, the trier of fact is not required to disregard the natural inferences that flow normallyfrom the evidence, nor is it required to search out all possible explanations consistent withinnocence and raise them to a level of reasonable doubt. People v. Bull, 185 Ill. 2d 179, 205, 705N.E.2d 824, 837 (1998); see also Campbell, 146 Ill. 2d at 380, 586 N.E.2d at 1268. While it isnecessary for the State to prove the elements of an offense beyond a reasonable doubt, that maybe done by resort to all the evidence, including the permissive inference. People v. Housby, 84Ill. 2d 415, 421, 420 N.E.2d 151, 154 (1981). The trier of fact is entitled to draw all reasonableinferences from both circumstantial and direct evidence (People v. Castro, 113 Ill. App. 3d 265,269, 446 N.E.2d 1267, 1270 (1983)), including an inference of penetration. People v. Bell, 234Ill. App. 3d 631, 636-37, 600 N.E.2d 902, 907 (1992); see also People v. Shum, 117 Ill. 2d 317,356, 512 N.E.2d 1183, 1198 (1987). Indeed, even where the evidence presented is capable ofproducing conflicting inferences, the matter is best left to the trier of fact for proper resolution.People v. Campbell, 146 Ill. 2d 363, 380, 586 N.E.2d 1261, 1268 (1992). This court will notsubstitute its judgment for that of the trial court on questions involving such evidentiaryinferences. People v. Gittings, 136 Ill. App. 3d 655, 660, 483 N.E.2d 553, 558 ( 1985).

Defendant also argues that it is unreasonable to infer that penetration occurred becausethe victim never "stated" that any contact actually occurred when describing the circumstancessurrounding the second sexual offense that took place in the apartment, as she did whentestifying regarding the first, third and fourth sexual offenses. It is true that, while elicitingtestimony regarding the first, third and fourth sexual offenses, after the victim testified thatdefendant "tried to start putting [his penis] in my mouth" (first offense), "tried to put his penis inmy vagina" (third offense), and "tried to put [his penis] in my mouth, he put it in my mouth then"(fourth offense), the assistant State's Attorney specifically asked a follow-up question as towhether "contact" was made. In each case, even though the words used by the victim were thathe "tried" to put his penis in, she confirmed that in so trying to penetrate either her mouth orvagina, the defendant did indeed make contact. The assistant State's Attorney, however, did notspecifically ask if contact was made when eliciting testimony regarding the second sexualoffense. Nonetheless, in view of the totality of the testimony, the trier of fact could reasonablyinfer that when the victim testified that defendant was "trying" to stick his penis in, she, as in theother three times, was describing an attempt at actual penetration whereby defendant wasnonetheless making the "contact" required to establish "sexual penetration" as it is legallydefined.

Even without the testimony of the other three offenses, the testimony regarding thesecond sexual offense, standing alone, was sufficient to allow a reasonable inference that theslightest contact between the victim's and defendant's sex organs occurred. Before we discussthat testimony, we wish to point out that the State, in its argument, overstated the evidence, mostnotably by implying that the victim testified that defendant was "all over" her, where she actuallytestified that he was "over" her and with the unfounded statement that as the victim struggled,she "felt" the defendant try to insert his penis in her vagina. There was no such direct,unequivocal testimony regarding contact, despite the State's contention to the contrary in its brief.

According to the victim's testimony regarding the second sexual offense, she was lyingface up on the floor and defendant was over her, with his knees on top of her. Defendant, whohad previously taken his penis out, had each of his legs on either side of her as he was lying overher. Defendant had pulled the victim's clothes down to below her knees, and as he was on top ofher and his knees were on top of her, he had both hands on her mouth and was "trying to stick[his penis] in." From this description, even without direct testimony from the victim that"contact" occurred, the trier of fact could reasonably infer that "contact, however slight,"occurred.

With respect to the victim's testimony that defendant was "trying to stick his thing in," thestatute "does not require a penetration in this ordinary sense. Only contact is required." People v.Burmeister, 147 Ill. App. 3d 218, 222, 497 N.E.2d 1212, 1214 (1986). The reasonableinference, even without an explicit statement from the victim that "contact" occurred, is that intrying to actually penetrate, defendant was making contact. The trier of fact could alsoreasonably infer that the victim's testimony that "he never did get a chance to do anything [withhis penis at that point] meant that actual physical penetration did not occur, but that contact did. As we have already stated, actual physical penetration is not required under the legal definition of"sexual penetration." Given the evidence presented and viewing it in the light most favorable tothe prosecution, we find that a rational trier of fact could have found that defendant committedfour acts of aggravated criminal sexual assault beyond a reasonable doubt.

With respect to defendant's constitutional argument regarding his sentence based upon therecent decision by the United States Supreme Court, Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000), specifically, defendant contends that the trial court'sdetermination that the defendant committed the offenses "as part of a single course of conductduring which there was no substantial change in the nature of the criminal objective" wasrequired to be charged in the indictment and also required to be proved beyond a reasonabledoubt.

The State's initial contention is that defendant has waived any challenge to his sentencesbecause he has never before challenged the imposition of consecutive sentences or otherwisecomplained that the charging instrument was deficient. Citing People v. Reed, 177 Ill. 2d 389,686 N.E.2d 584 (1997), the State argues that Illinois law is clear that a defendant who wishes tochallenge his sentence or any irregularities in the sentencing hearing must first file a timely post-sentencing motion in the trial court or the issue will be deemed waived. The State, citing Peoplev. Thingvold, 145 Ill. 2d 441, 448, 584 N.E.2d 89 (1991), further contends that a failure tochallenge a charging instrument prior to the conclusion of the trial will result in waiver of theissue unless the defendant can prove that he was prejudiced by the deficiency. We note thatdefendant was sentenced in March 1999, and the United States Supreme Court decided Apprendiin June 2000. Under those circumstances, we do not consider defendant's arguments waived. Moreover, a challenge to the constitutionality of a statute may be raised at any time. See Peoplev. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d 755, 766 (2000). Indeed, as defendant points out, as aconstitutional ruling, the Apprendi decision is retroactive to cases pending on direct appeal aswell as to collateral proceedings. Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct.708 (1987). We shall address the merits of defendant's argument.

In support of his argument, defendant cites People v. Waldrup, 317 Ill. App. 3d 288, 740N.E.2d 71 (2000), in which the court held that the provisions of the statute mandatingconsecutive sentencing where a defendant is convicted of aggravated criminal sexual assaultwere unconstitutional under Apprendi. Defendant failed to cite the more recent case of People v.Maiden, 318 Ill. App. 3d 545, 743 N.E.2d 1052 (2001), which rejected Waldrup.

In any event, Waldrup has been abrogated by the recent Illinois Supreme Court cases thathave held that Apprendi does not apply to consecutive sentences. See People v Carney, No.90549 (Ill. June 21, 2001) and People v. Wagener, No. 88843 (Ill. June 1, 2001).

In accordance with the foregoing, we affirm defendant's conviction and sentence.

Affirmed.

CAMPBELL, P.J., and BUCKLEY, J., concur.