Petition — Osborn v. Illinois

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_ ICHAEL RCDAK JR. CLERK

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1978

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No. @E°1soe

MARK OSBORN,

Petitioner,

LAY

STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF ILLINOIS

SERPICO, NOVELLE, DvoRAK

& NAVIGATO, LTD.

54 West Randolph Street

Chicago, Illinois 60601

(312-641-5566)

ROBERT A. NOVELLE

Counsel for Petitioner

June 21, 1978

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

el ee re

INDEX.

PAGE

RR OE SO rr ee ee eee eee Te 1

EE oC URe ate EUnaa Gadus sss pcrceese 2

i 2

Constitutional Provisions Involved .................. 2

ee males becaccccce 3

Measoms for Gicamiims Gee Wret ..... .. 2.22 16

ee ea a ewe ccc cece 29

Appendix A (Opinion of Appellate Court) ............ Al

Case CITATIONS.

Pe Pe a I 6 Sig occ cha ccc cee ee. 16

BPO W, T, OP Ole Oe So icc wesc ccc ccee 19

Burgett v. Texas, 389 U.S. 109 ........-.-- eee ee 16, 21

Se I I bac c nce cece cence. 16, 17

Se I ts Coc ccc ec cccce 16

RD We occ e ccc c cc ccce. 16

ig Saas vce sv ccces 19

Rochin v. California, 342 U. S. 165 ................. 16

ee 17

1 Wigmore, Evidence, 3rd Ed. § 194 ............... 17, 18

pe SE 20

McCormick, On Evidence, Chpt. 17, § 157 ........... 17

.

ee wy en ermeeeer sen —

ne

Supreme Court of the Anited States

OCTOBER TERM, 1978

MARK L. OSBORN,

Petitioner,

vs.

STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF ILLINOIS

The Petitioner, Mark Osborn, prays that a Writ of Certiorari

issue to review the Order and Judgment of the Supreme Court

of Illinois affirming the Order of the Appellate Court of Dlinois,

First District, affirming the Petitioner's conviction rendered in

those proceedings on March 30, 1978.

OPINION BELOW

The Supreme Court of Illinois denied leave to appeal herein

and in effect affirmed the decision of the Appellate Court of

Illinois, First District, without formal opinion by Order on

March 30, 1978. The opinion of the Appellate Court is un-

reported as yet and appears at Appendix “A”.

JURISDICTION

The Order, a judgment of the Supreme Court of the State

of Illinois, was entered on March 30, 1978. This Petition for

Certiorari was filed less than 90 days from the date aforesaid.

The jurisdiction of this Court is invoked under 28 U. S. C.

§ 1257(3).

QUESTIONS PRESENTED

The Petitioner was tried and convicted, after a bench trial, of

rape and deviate sexual assault. During the trial, and over the

objection of the defense, the Court allowed into evidence a

totally unrelated alleged criminal act or enterprise. The questions

thereby arising are:

1. Whether the State of Illinois deprived Petitioner of

Due Process of Law when they tried the Petitioner

relying heavily upon evidence of an unrelated alleged

crime to support the conviction for the charges on trial;

2. Whether the Petitioner was deprived of a Fair and

Impartial Trial because he was confronted with the

additional burden of meeting and defending against not

only the charges on trial but, also, the alleged other

crime;

3. Whether, when considered in its entirety, the case made

out by Petitioner is so shocking that it presents a de-

parture from fair and orderly State Court Protedure

required by the provisions of the Fourteenth Amend-

ment to the Constitution of the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

“No person shall . . . be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty or property, without due process of law .. .”

AE NIT

Constitution of the United States, Amendment XIV, § 1:

i)

. nor shall any state deprive any person of life,

liberty or property without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

STATEMENT OF FACTS

The Petitioner was found guilty after a bench trial upon the

charges of rape (Ill. Rev. Stat., Chapt. 38 § 11.1) and two

counts of deviate sexual assault (Ill. Rev. Stat. Chapt. 38 § 11.3)

and sentenced to from five to 18 years in the Illinois Department

of Corrections under Indictment No. 75-1424. Direct appeal

was thereafter filed with the Illinois Appellate Court, First

District (No. 76-542) which affirmed the rape conviction on

September 26, 1977. However, the Appellate Court reversed

outright and vacated the Trial Court's finding on the two counts

of deviate sexual assault on sufficiency grounds and thereafter

sua sponte reduced Petitioner’s sentence to four to eight years

(See attached opinion, Exhibit “A”). Thereafter, a Petition for

Rehearing was filed, on October 17, 1977, considered by the

Court and denied on October 24, 1977. A Petition for Leave

to Appeal to the Supreme Court of Illinois was prepared and

filed and likewise denied on March 30, 1978. The issue raised

herein concerning the use of the other crime evidence as raised

in all the Courts below as herein in addition to sufficiency of

the evidence.

The State’s evidence in this case consisted mainly of the un-

corroborated testimony of Ms. Barbara Banich, the prosecutrix

herein. Ms. Banich testified substantially as follows:

She was a single 24 year old college graduate living alone in

a studio apartment at 67742 Wrightwood in the City of Chicago

(Record pp. 20, 21, 200). She was employed in marketing and

communications by Encyclopedia Brittanica and Spiegels since

February 1974 (Record p. 22) and in December 1974, she had

occasion to read the Chicago Tribune want ads and answered

4 \

an ad for employment by telephoning the number listed therein

(Record pp. 26, 27, 28). She left her phone number in response

to a tape answering service message and on Sunday, December

15th, she received a phone call in response thereto from the

Petitioner, Osborn (Record p. 29).

An interview for the job was set up for 7:00 p.m. on De-

cember 18, 1974 at 1030 North State, Chicago, Illinois (Record

pp. 30, 32, 33). Ms. Banich went to the interview and was

admitted by Mark Osborn whom she identified in court (Record

pp. 38-40, 41). They conversed for about 15 minutes regarding

the job (Record p. 42). Thereafter, another applicant arrived,

and the interview was terminated (Record p. 43). The Peti-

tioner told Ms. Banich before she left that he would call to

talk to her further about the job (Record p. 44).

On January 11, 1975, Ms. Banich testified she received a

phone call from Osborn at her apartment wherein he asked her

if she wanted to attend a hockey game. She refused, and the

conversation was terminated (Record p. 44). On January 17,

1975, Osborn called again and asked her to a basketball game

with another couple on January 18, 1975 (Record pp. 46-47).

Ms. Banich toid Osborn of a previous party commitment and

they agreed to attend both functions together (Record pp.

47-48).

On January 18, 1975, Osborn came to her apartment at about

7:00 p.m. and she admitted him (Record p. 49). They stayed

about five minutes while she fixed some food for her dog and

then left the apartment for the party (Record p. 50). After

arriving at the party, they met the host and hostess, David

Krause and Nicki Slusser Krause, ate some chili, and drank wine |

(Record p. 50). They remained at the party for about 45

minutes before the other couple, Howard MacArthur and Nancy,

arrived (Record p. 53), after which the four of them departed

in Howard’s van for the basketball game (Record p. 53).

In the vehicle, Howard and Nancy were seated in front;

Banich and Osborn in the back seat (Record p. 55). They

5

arrived at the game to see the Bulls play the Knicks. Throughout

the game, Barbara sat next to Osborn and they conversed about

basketball and the game (Record p. 56). After the game, they

returned to the party with Howard and Nancy (Record p. 58)

arriving back at about 10:30 p.m. They remained at the party

another 2% hours, but Banich claims to have had nothing fur-

ther to eat or drink (Record p. 59).

Afi four left the party at about 12:30 or 1:00 a.m. and

walked down the street towards the van (Record p. 60). Howard

and Nancy were walking up ahead of Mark and Barbara. She

testified that Howard and Nancy walked to their van, while she

and Mark walked to her apartment (Record pp. 60-61). While

walking to her apartment, she testified Mark asked her if he

could come up for some coffee; it was a cold night, and she said

yes (Record pp. 61-62). They went up to her apartment alone

where she fixed hot chocolate while he sat on the studio bed

in the living room of the apartment (Record pp. 62-63). They

thereafter had a conversation about dogs and other small talk

(Record p. 64) which lasted about % hour (Record p. 66).

During this time, Osborn allegedly told her he usually goes

to bed with women he goes out with, whereupon she responded

that she didn’t (Record p. 64). He then allegedly told her that

he didn’t call women a second time if he didn’t go to bed with

them, and she said she told him not to call her again (Record

p. 65). They then conversed about the job and Osborn’s back-

ground. At this point, Osborn said he was going to leave but

asked for a cold drink first, whereupon she got him a beer and

returned to the couch (Record p. 67). She did not order Osborn

out after his references during the conversation to sexual activity

or after his alleged sexual advances. The conversation continued.

Finally, Osborn asked to use the washroom preparatory to his

leaving (Record p. 68). He remained in the washroom a short

period of time and returned (Record p. 69). The washroom is

in the direction of the kitchen but before the kitchen in the

hallway.

6

Upon Osborn’s return from the bathroom, he allegedly said,

“I don’t want to alarm you but I am going to have sex with

you” and grabbed Banich by the throat, squeezing her throat

and pushing her backwards down on the couch (Record p. 70).

At this time, she claims Osborn produced a knife which she

recognized as a steak knife from her kitchen (Record p. 71).

He allegedly put the knife to her throat and ordered her to

disrobe (Record p. 72). Banich testified she tried to scream,

but couldn’t (Record p. 72) although she could talk and al-

legedly told the Petitioner that she knew who he was and where

he lived and he couldn’t get away with something like this

(Record p. 73).

At this point, she says that Osborn got up, let go of her throat,

and ordered her to disrobe (Record p. 74). She said she merely

sat there while he counted to five and did not disrobe (Record

p. 75).

The Defendant then allegedly got up again and recounted to

five during which she, unassisted, removed all her clothing

(Record p. 77). At this time, the Defendant also removed all

his clothing and while doing so she made no attempt to escape,

call or scream out for help, but merely sat there. At this point,

she told the Petitioner that she was in her menstrual period to

allegedly discourage his sexual advances (Record p. 77). She

then asked to leave the room to remove her sanitary device to

which he initially consented but later refused as she attempted

to ieave the room (Record p. 77). She then removed the device

herself in front of the Petitioner in the living room (Record

p. 78).

At this point she testified they returned to the couch and he

told Banich to “suck him” (Record p. 79). She refused to do so

and he allegedly grabbed her by the neck and pulled her down

over his penis (Record p. 79). The Defendant no longer had

the knife and the last time she remembers seeing the knife was

when they were at the door when she attempted to leave to

remove her sanitary device. She found the knife the next day

eA NIN Oe Be IR mr mr

7

on the desk by the door where they were standing before

returning to the couch (Record p. 146). The knife was never

turned over to the police, inventoried, presented as evidence nor

shown to any other corroboration witness.

When the Petitioner allegedly pulled Banich down over his

penis, her mouth made contact with his penis, but she never

performed oral copulation and didn’t open her mouth. The

comtact was slight (above five seconds) and momentary (Record

pp. 79, 220, 211).

The Defendant then allegedly pushed Ms. Banich down on

the couch in a prone position and put his mouth on her vagina

(Record p. 81). No testimony is adduced as to what he did

when he put his mouth on her vagina other than his mouth

momentarily touched her vagina.

Ms. Banich then testified that the Petitioner had “sexual

intercourse three times with her” (Record p. 81). She testified

that after the above incidents concluded, she ordered the

Respondent out of the apartment, but he said he would leave

when he was ready and remained there another 45 minutes

(Record pp. 82-83). The Petitioner and she put on their

clothing and remained on the couch talking and conversing

(Record pp. 82-83). There is no testimony that either party

cleansed themselves or bathed at that point despite Ms. Banich’s

alleged menstruation on the night in question. The Petitioner

was in the apartment a total of about 242 hours (Record p. 83).

After the incident, they conversed about why he did it and

his relationship with other women (Record p. 84). During this

time, the Petitioner did not have any weapon and was not

forcefully holding Ms. Banich, yet she made no attempt to

scream, get away, call the police or leave the apartment.

Finally, the Petitioner left her apartment at about 4:00 a.m.

(Record p. 89).

After the Petitioner left the apartment, Ms. Banich took a

shower, wrapped herself in a blanket and went to sleep on the

8

couch where she remained until 10:00 a.m. the next morning

(Record p. 85). She did not call the police, make an outcry,

call for help, call friends or her parents or do anything to

report the crime or make others aware that an alleged crime

had been committed.

After she arose the next morning, she called Rape Crisis.

She then testified to a series of calls to Rape Crisis to report the

rape which occurred throughout the proceeding, all of which

testimony was objected to as being hearsay and prejudicial by

defense counsel and all of which was overruled and allowed

into evidence by the Trial Court (Record pp. 91 to 105).

The defense counsel iepeatedly asked for a mistrial concerning

this testimony, which the Trial Court denied (Record p. 93).

Ms. Banich then testified to a phone call she made to

Nicki Slusser Krause the day after the incident and, again, over

objection of the defense, testified that she told Nicki Slusser

Krause that she had been raped (Record p. 97) by Mark Osborn.

Ms. Banich was allowed to testify, over objection of the defense

counsel, as to the details of what she told Nicki Slusser Krause

(Record p. 98), reciting how Osborn, the person she was with

at the party the previous evening came back to her apartment

asking to come up for coffee and then assaulted and raped her.

She testified that she told Nicki Slusser Krause she was afraid

he would come back (Record p. 98), yet never called the

police. Ms. Banich testified that about an hour after she called

Nicki Slusser Krause she called her mother, but never told her

mother of the alleged incident (Record p. 101).

On cross-examination, Ms. Banich admitted that she never |

went to the hospital after the incident for treatment or a medical

examination (Record pp. 111-112) and didn’t contact the

police until approximately one week after the occurrence

(Record p. 112). She also admitted that she made no attempt to

contact anyone regarding the incident until over seven hours

after the alleged occurrence (Record pp. 116-117).

ee ee ee ET eee rn nae

9

Ms. Banich denied that on the night of the occurrence that

she had been out on a date with Osborn and insisted that the

purpose of the evening was tc discuss the job (Record p. 138).

She stated that when Osborn had asked her for a date, she

refused (Record p. 138). She insisted the purpose of the

evening was to discuss the job (Record p. 134), although she

admitted that the job was not mentioned during the entire

course of the evening and only incidentally talked about while

in her apartment.

Ms. Banich admitted she never saw Osborn in her kitchen

where the knife was allegedly kept (Record p. 145) and she

never saw him secure the knife (Record p. 146). She testified

that the kitchen was not next to or contiguous to the bathroom,

but was six or seven feet further down the hallway from

the bathroom (Record p. 145). She testified Osborn was never

out of her visual presence except when he went to the bathroom

(Record pp. 144-145-146-147). She testified she found the

knife on the desk in the apartment after he left (Record p. 146)

five feet away from the couch bed combination; however, no

testimony was elicited as to what, if anything, she did with the

knife thereafter. No evidence was submitted that she ever sub-

mitted the knife to the police or told them about it nor was any

testimony submitted as to any fingerprint analysis thereon to

attempt to connect the Petitioner to the knife. The knife was

never submitted during the trial as an exhibit.

Ms. Banich testified that the Petitioner did not have the

knife in his hands when he returned from the bathroom

(Record p. 148), but he produced it from some unknown

location immediately after his return from the bathroom (Rec-

ord p. 150). She claimed the knife had a seven or eight-inch blade

(Record p. 149). She admitted that the Petitioner did not have

the knife at any time after her disrobing and removal of the

sanitary device and, specifically, the Petitioner was not armed

with the knife during the alleged sexual assaults or at any time

thereafter, although they remained together for a substantial

10

period of time (Record pp. 147, 237, 238, 239, 240). Although

the Petitioner was unarmed, she never screamed out, called for

help, attempted to get away or physically resisted the Petitioner

(Record pp. 201, 207, 220-228). Initially, Ms. Banich denied

that the Petitioner ever engaged in any touching, petting or

kissing or any other contact which would be considered sexual

foreplay (Record pp. 153, 154, 155, 156, 157). However, she

did finally submit that the Petitioner had tried to kiss her once

(Record p. 158), he did move next to her on the couch and

put his arm around her (Record p. 168), and he did fondle

her breasts (Record p. 169), claiming it was not unusual for

a man to touch her breasts (Record p. 169) and that the

Petitioner was “getting friendly” with her (Record p. 170).

She also admitted having testified at the preliminary hearing

that while on the couch the Petitioner was touching her any-

where he could (Record p. 171) and that during this time they

were talking about going to bed together (Record pp. 179-180).

She admitted, further, that during this course of conduct on the

couch, she never asked Osborn to leave, never told him to stop,

she did not scream or cry or call for help (Record pp. 172-175).

Ms. Banich testified that other people were present in the

building that evening in adjacent apartments (Record p. 242),

but she never sought their aid or reported the incident to them

either during or after the alleged incident (Record p. 245).

The next witness to testify was Linda Barnes, who had no

testimony to offer regarding this alleged occurrence, but was

called to testify to a subsequent incident obstensibly und:r the

theory of using other offenses to show pattern, common scheme

or design. Defense counsel, prior thereto, sought to exclude her -

testimony as prejudicial and not within the common scheme,

pattern and design exception to the admissibility of evidence of

other alleged crimes and as being so highly prejudicial so as to

deny Petitioner due process. The Trial Court overruled these

objections and allowed Mrs. Barnes to testify over objection in

complete detail as to an unrelated incident which allegedly

11

occurred between her and the Peiitioner (Record pp. 265-272).

The Trial Court allowed this, notwithstanding the fact that

charges brought by Mrs. Barnes against the Petitioner had

already been judicially heard and the Petitioner was discharged

on those charges prior to this trial. Defense counsel sought to

bring a certified copy of the Court’s Order discharging the

Petitioner and finding no probable cause approximately one

year prior to the trial herein, but the Trial Court ruled this

unnecessary and took judicia) notice of this fact (Record

p. 384). Numerous objections and mistrial motions were made

during the course of the trial concerning this testimony and

extensive arguments and citations of case law were presented

to the Trial Court both before and after the Barnes’ testimony

(Record pp. 265 to 272; Record pp. 320 to 332; Record

pp. 380 to 385).

Mrs. Barnes was allowed to testify in depth and in great

detail as to the entire alleged incident between herself and

Mr. Osborn. She testified that on January 16, 1975, she read an

ad for collating work and responded thereto (Record p. 274).

That the Petitioner dropped some work off at her house for

her to do and he was to pick up the papers when she finished

(Record pp. 276 to 278). The Petitioner was supposed to pick

the papers up on January 19, 1975, a Sunday afternoon

(Record p. 278), and attend a party Barnes was having that

afternoon with an artist friend who was bringing “dirty movies”

(Record p. 292). Osborn did not show up at the party or pick

up the work (Record p. 278). Thereafter, Mrs. Barnes testified

that she tried to contact Osborn several times (Record p. 278),

but didn’t reach him until Thursday afternoon, January 23,

1975 (Record pp. 278-279). At that time, she asked him to

pick up the papers that evening and, again, invited him to

another party she was having that evening (Record pp. 279-

281; 291; 293). She asked him to bring along some porno-

graphic movies to show at the party (Record p. 293). Before

arriving that evening, the Petitioner called about 10:30 p.m.

12

and inquired as to whether the party was still on and whether

he should still come over (Record p. 281). Mrs. Barnes told

him to come right over. He arrived about 11:00 p.m. (Record

p. 282) and Mrs. Barnes, her husband, and another couple

were present at the time in the apartment.

After Osborn arrived, they showed the pornographic movies

(Record p. 283) which depicted people having sex, couplating,

and engaging in deviate sexual acts (Record p. 295). During

the course of the evening they were all consuming alcoholic

beverages and smoked marijuana (Record pp. 297, 298, 319).

After the movies were over, the other couple left and Osborn

was invited to sleep over in the guest room by Barnes and her

husband (Record pp. 283-297). The next morning her husband

left for work while Osborn was still there and Barnes remained

in her bed (Record p. 285). Barnes testified she slept in the

nude except for her panties (Record pp. 285-301) and that

while she was upon the bed, the Petitioner came to her bedroom,

fully clothed (Record p. 300) and position himself in the door-

way to her bedroom (Record p. 285). At this point, Osborn

allegedly asked her if he could get in bed with her (Record

pp. 285-302), whereupon she asked “Why?” (Record pp. 285-

304). Defendant allegedly said, “I want to ball you” (Record

pp. 285-304), whereupon Barnes testified she said, “No”

(Record pp. 285-304). At this point, she testified the Petitioner

left her bedroom and went into the kitchen and she got up,

put on a robe and followed him to the kitchen were she made

tea (Record pp. 285, 305, 306, 307). She never ordered

Osborn out of the apartment, made no outcry, didn’t call the

police nor attempt to leave the apartment herself. (Record .

p. 307). She never reprimanded Osborn for talking that way

nor felt insulted or offended (Record p. 307). In the kitchen,

Osborn wrote out a check for her services and went into the

living room and prepared to leave (Record p. 286). As the two

of them walked towards the door in the foyer, Osborn allegedly

grabbed her and said, “We're going to bed” (Record p. 287).

13

He pushed her towards the bed, but before they reached: the

bed she told him it would be rape if he continued. Whereupon,

he promptly stopped, released her, pushed her onto the bed

and left the apartment mumbling (Record p. 288). No weapon

was alleged to have been used (Record p. 288) and Barnes

admitted that she never resisted, cried out for help or attempted

to get away (Record p. 313). Barnes admitted that the Peti-

tioner never touched her breasts, thighs or other parts of her

body (Record p. 316), never took off her underwear or

ordered her to disrobe (Record p. 316), never directed her

to “suck him” (Record p. 316), and never performed or forced

her to perform any sexual acts or deviate sexual conduct.

Barnes never called the police nor made an outcry until several

hours later after consulting Rape Crisis, as Banich had done.

The police were called at about 3:00 p.m. (Record p. 317)

several hours after Osborn had left.

David Krause testified that he lived with Nicki Slusser in

the apartment at 2700 Hampton Court, Chicago, Illinois

(Record pp. 337-352). They had a wine and cheese and chili

party in January of 1975 which Barbara Banich attended with

Mark Osborn (Record pp. 339-340). They arrived at about

6:30 p.m. and stayed about 45 minutes (Record p. 341).

Ms. Banich had a glass of wine (Record p. 342). Thereafter,

the other couple arrived and then all four departed (Record

p. 343). They all returned about 10:00 p.m. and remained at

the party for about 2% or 3 hours, leaving sometime around

12:30 a.m. (Record pp. 344-345). He received a phone call

from Ms. Banich the next day and Nicki had a conversation

with her (Record pp. 348-350). Later that evening, about

5:00 p.m., they went over to Barbara’s house to pick her up

and bring her back to their apartment (Record pp. 350-351).

When he saw Ms. Banich on the 19th day of January, he saw

no cut on her hand (Record p. 52).

The next State witness was Nicki Slusser Krause, the party's

hostess. Nicki Slusser testified that she received a phone call

14

from Ms. Banich about 10:00 a.m. the day after the party

(Record pp. 392-393) and had a conversation with her (Record

p. 394). Again, this testimony was over the objection of

defense counsel (Record p. 395). The witness then testified

that she waited seven hours before going over to assist and aid

Ms. Banich and return her to the witnesses’ apartment (Record

p. 367). The witness was never shown any cut or any knife and

she did not call the police or a doctor to examine Barbara

(Record pp. 399-400).

Howard MacArthur, who was with Osborn and Banich the

evening before the alleged incident (Record pp. 407-408) testi-

fied for the defense that he is a Certified Public Accountant and

is employed in that type of work (Record p. 409). On the

evening in question, his date was Nancy LaPierre (Record

p. 409) and his testimony concerning the evening in question

basically follows the facts as established by Ms. Banich. However,

MacArthur testified that when the four of them left the Krause

apartment on the final occasion, he overheard Ms. Banich, her-

self, invite Osborn up to her apartment (Record p. 412). He

heard Ms. Banich at that time state, “Would you like to come

over to may place?” (Record p. 413). He testified that at that

point they separated. In cross-examination, he testified that he

was positive of the conversation.

The Petitioner then testified in his own behalf. He testified

that he did, in fact, go to Ms. Banich’s apartment on January

18, 1975 and first arrived there at about 6:30 p.m. (Record

pp. 417-418). He stayed about five minutes and then the two

of them departed to the party (Record p. 419). They stayed

at the party 45 minutes where they met MacArthur and his date -

and went to the basketball game (Record p. 420). Osborn

testified that he acted towards Ms. Banich as he would towards

a normal date, making physical contact with her many times

during the evening (Record p. 421). He had his arm around her

on occasion (Record pp. 421, 423, 425, 254, 457, 461). He

kissed her a “quick kiss” on a couple of occasions (Record pp.

15

421-461) and held hands repetitively (Record pp. 421, 423, 425).

Ms. Banich never pulled away, never told him not to touch or

kiss her, nor in any way indicated displeasure with his conduct

(Record pp. 421-423, 425) and, in fact, she had her arm around

him as they walked back to her apartment after the party

(Record p. 425).

They left the party with Howard and Nancy and as they were

walking towards her apartment , she asked Osborn if he would

like to come back to her apartment and have a drink (Record

p. 424). Osborn agreed and then told MacArthur he wouldn't

be riding home with MacArthur and Nancy, that he was going

to have a drink at Barbara’s apartment (Record p. 424). Osborn

and Barbara then left MacArthur and Nancy and they went to

the apartment (Record p. 425).

After they went up to the apartment, Barbara asked if he

wanted anything to drink and she served him a beer (Record

p. 426). They sat on the studio bed-couch and he put his arms

around her and she put her arms around him (Record p. 427).

They began petting and kissing with Osborn unbuttoning her

blouse and putting his hand inside her bra, fondling her breasts

(Record pp. 427-469). This conduct continued for about four or

five minutes (Record p. 427). At this point, Osborn slid his

hand inside her pants and fondled her vaginal area, whereupon

Ms. Banich placed her hand on top of his and asked that he not

do that because she was having her period (Record pp. 429-

469). At this point, Osborn removed his hand and they continued

petting and kissing on the couch (Record pp. 429, 474-475).

During this time, they talked about a number of things and

watched a Hitler documentary until about 2:00 or 2:30 a.m

before he left (Record p. 430).

Osborn denied ever having sexual intercourse; denied ever

placing his mouth on her vagina; and denied ever placing her

mouth on his penis (Record p. 431). Near the end of the

evening, Ms. Banish asked him if anyone was selected for the

job, and he told her he had given it to another girl (Record

16

p. 431). At this time, rather abruptly and severely, Ms. Banich

announced that she was tired now and that Osborn had better

leave (Record pp. 431-432). Osborn testified he then left.

Osborn denied ever touching or having a knife in the apartment

(Record pp. 470-478). At this point, both sides rested.

REASONS FOR GRANTING THE WRIT

The decision below directly conflicts with fundamental fair-

ness and due process principles enunciated by this Court. It is

an elementary principle of criminal law that a state’s evidence

law cannot take precedence over fundamental constitutional

doctrines. Akins v. Texas, 325 U. S. 398, 65 S. Ct. 1276, 89

L. Ed. 1692. In the case at bar, the State of Illinois relied upon

a rule of evidence concerning other crime evidence which we

contend worked to substantially deny Petitioner of a fair trial.

The States have no power through judicial proceedings to impose

upon Petitioner a rule of evidence which will deprive him of

immunities granted by the Federal Constitution. Ciucci v. Illi-

nois, 356 U. S. 571, 78 S. Ct. 839, 2 L. Ed. 2d 983; Michelson

v. U. S., 335 U. S. 469, 69 S. Ct. 213, 93 L. Ed. 168. The

State proceedings herein were the equivalent of trying Petitioner

upon the joint charges of the Barnes as well as the Banich inci-

dents, although Petitioner was never charged with any offense

involving Barnes. The evidence showed two alleged sexual

assaults, the indictment charged only one.

This Court has said that due process of law, as a historic and

generative principle, precludes defining, and thereby confining,

these standards of conduct more precisely than to say that

conviction cannot be brought about by methods that offend “a ©

sense of justice”. Rochin v. California, 342 U. S. 165. Although

it is true that the State of Illinois is free to regulate its criminal

procedures in accordance with its own conception of policy, it

cannot do that which “offends principles of justice” so rooted in

traditions of conscience of our people as to be ranked as funda-

mental. Burgett v. Texas, 389 U. S. 109; Johnson v. U, S., 318

17

U. S. 189. The action of the State of Illinois admitting into

evidence such patently prejudicial evidence, without counter-

yailing probative value, and resting upon such questionable

proof offends principles of justice so rooted in the tradition of

our people as to be ranked as fundamental and therefore re-

sulted in depriving Petitioner of due process and substantial

fairness. This case presents a kind of other crime evidence in-

cased in arbitrary and prejudicial state action which violates

the fundamental sense of decency in state court criminal trials.

As a general rule, apart from some very limited exceptions,

evidence of the commission of other crimes by an accused in

support of the crime charged is inadmissible and is sufficiently

prejudicial to constitute reversible error. See Ciucci v. Illinois,

356 U. S. 571, 78 S. Ct. 839, 2 L. Ed. 2d 983. The law distrusts

the inference that because a man has committed the other crime

he is more likely to have committed the current crime and so,

as a matter of policy, such testimony should generally be ex-

cluded and discouraged and, where admitted, carefully scruti-

nized and limited to avoid prejudice and insure its probative

value outweighs any prejudicial effect. 1 Wigmore, Evidence,

3rd Ed. § 194. The limited exception to the above rule is that

such evidence is admissible if it works to place the defendant in

proximitly to the time and place of the offense charged, aids

or establishes identity and tends to prove design, motive or

common scheme. However, even within these limited exceptions,

the Trial Court is granted broad discretion to balance preju-

dicial effect against probative value and where probative value

is slight and the evidence of the prior offense suspect, weak, or

not plain and convincing, or where the evidence of the current

crime is weak and uncorroborated as the case at bar, such evi-

dence generally should be discouraged and its admission has

been held to be an abuse of discretion. McCormick, Law of

Evidence, Chapt. 17, § 157.

In U. S. v. Ostrowski, 501 F. 2d 318 (1974), the Circuit

Court of Appeals in holding such evidence prejudicial and

18

erroneously admitted set up three basic criteria in reviewing the

admissibility of such evidence. The Court stated:

“In analyzing the admissibility of evidence of a prior

crime to prove an elesient of the crime charged, three

considerations must be kept in mind: (1) iecognizing the

general rule that prohibits admission of such evidence of

other crimes to prove the commission of the crime charged,

it must be demorstrated that the evidence is of a type that

fits within one of the exceptions to the general rule of

inadmissibility; (2) even though evidence of a prior crime

is relevant, the court must engage in a balancing process

to decide whether the probative value of the evidence out-

weighs the possible prejudice to the defendant occasioned

by such evidence; and (3) the evidence of the other crime

must be clear and convincing.”

The Court in its opinion herein held the other crime evidence

of Linda Barnes admissible as falling within one of the recog-

nizable exceptions to inadmissibility (i.e. modus operandi or

common scheme). However, in so doing, the Court totally

ignored any consideration of the required three criteria and

misinterpreted and misapplied the third criteria. The Court

ignored the basic precept in considering such evidence, that the

presumption is against admission and such evidence should be

generally excluded. 1 Wigmore, Evidence, 3rd Ed. § 194. The

opinion in this case literally holds that admissibility of such

evidence is presumed and the burden is on the defendant to

show inadmissibility. This is clearly erroneous and violative of

basic due process considerations in placing such a burden on

the Petitioner. The law is clear that such evidence is clearly

disfavored and all of the three criteria for admissibility must be

carefully met before this presumption yields in favor of ad-

mission.

In the case at bar, the State presented evidence of another

alleged subsequent (not prior) offense ostensibly under the

theory of the “common scheme” exception. This evidence was

patently prejudicial to the Petitioner to the extent that it vio-

lated due process considerations and denied him a fair trial.

19

The evidence in this case consisted of the uncorroborated testi-

mony of the prosecutrix alone. No corroboration in the form

of prompt outcry, immediate report to the police, physical

trauma to the victim, recovery of weapons, torn clothing,

medical examination or any other traditional element of prose-

cutrix corroboration was presented in this case. Thus, the State’s

case started off evidentiarily weak. As the Trial Court noted,

the only substantial corroboration was the testimony of the

other incident offered for “common scheme”. The Trial Court

noted this in its colloquy in finding the Petitioner guilty (Record

p. 554). The Court termed this other offense evidence as the

main corrobative factor to establish proof beyond a reasonable

doubt in the case at bar (Record p. 554). This demonstrates

how heavily the Court relied upon this evidence of another crime

in finding the Petitioner guilty and indicates how prejudiced the

Petitioner was by the erroneous admission of this testimony.

This alone elevates the trial error concerning the admission of

such evidence to due process prerogatives. Brady v. Maryland,

373 U. S. 83, 93 S. Ct. 1194, 102 L. Ed. 2d 215; Miller v Pate,

386 U. S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690.

A.

The Other Alleged Offense or Criminal Act Was Not Established

to Have Occurred by Substantial Evidence and Clear and

Convincing Proof.

It was pointed cut to the Trial Court, prior to the admission

of the evidence in question that the Petitioner prior to this trial

had been arrested and charged with the offense of attempted

rape in conjunction with the Barnes’ allegations and the cause

had proceeded to a preliminary hearing in the Circuit Court of

Cook County, Illinois. It was also pointed out and the Court

took judicial notice of the fact that the Court found “nc prob-

able cause” in connection with the Barnes’ charges and dis-

charged the Petitioner, finding her testimony incredible and,

even if believable, that no attempt rape had occurred under

20

Barnes’ version of facts (Record p. 384). The State thereafter

abandoned the Barnes case and never sought or secured an

indictment or further prosecuted that case. Nevertheless, the

Court allowed Barnes to testify to substantially the entire inci-

dent that allegedly transpired between herself and the Petitioner.

Her testimony was totally uncorroborated and consisted of the

identical evidence presented before the prior court which one

year earlier found no probable cause. This constitutes a clear

violation of due process.

Corpus Juris Secundum states:

“Evidence of other crimes committed by the accused

should be admitted only where they arc substantially

established . . . Before evidence of the commission of other

crimes by [the] accused is admitted, the trial court should

satisfy itself that the evidence substantially establishes the

other crimes, accused’s connection therewith and their con-

nection with the offense for which accused is being tried,

and clear and convincing proof or the making out of at

least prima facie case is required.

“Evidence of a vague or uncertain character offered for

the purpose of showing that the accused has been guilty of

similar offenses should not be admitted under any pretense

whatever; nor is mere proof of arrest, or indictment, or

mere suspicion or proof of suspicious circumstances suf-

ficient. So, before guilty intent may be inferred from other

similar crimes, they must be established by evidence which

is legal and competent, and plain, clear and conclusive.

22 A.C.J.S. § 690, p.791-792.”

The proof in the instant case, Ms. Barnes’ testimony, was not

of such a character and did not even make out a prima facie

case of attempt rape as the Court found when it entered the no .

probable cause order.

Ms. Barnes’ testimony may be summarized, aside from its

credibility, as follows: the morning after a marijuana and

pornography party in her apartment to which she invited the

Petitioner (Record pp. 279-280-281-291-293) while alone in

her apartment, after having invited the Petitioner to stay over-

21

night (Record pp. 283-291), the Petitioner approached her

bedroom door while she was in bed clad only in her panties

(Record p. 285) and asked if he could get in bed with her

(Record pp. 285-302). Ms. Barnes allegedly asked, “Why?”

(Record pp. 285-304) to which Petitioner allegedly responded,

“I want to ball you” (Record pp, 285-304), whereupon Barnes

claims to have said, “No”. At this point, Petitioner allegedly

went to the kitchen and Barnes got up off the bed and followed

the Petitioner to the kitchen. After having tea, and Petitioner

issuing a check to Barnes for some clerical work she had per-

formed, Petitioner got ready to leave and both walked towards

the door. In the foyer, Petitioner allegedly grabbed Barnes and

said, “We're going to bed” (Record p. 287) pushing her towards

the bed. Before they reached the bed, she allegedly told Peti-

tioner it would be rape if he continued, whereupon the Petitioner

promptly desisted, released her, pushed her on the bed, and left

the apartment mumbling (Record p. 288).

According to the above version of facts, no substantial step

towards any sex offense was perpetrated. Furthermore, no mani-

festation of an intent to rape or have sex by force and against

the will of Ms. Barnes was presented by her testimony. As soon

as resistance was manifested, the Petitioner desisted. Thus, even

if Barnes’ bizarre story was believable, it is insufficient, as a

matter of law, to establish even a prima facie case that a crime

was committed. The Prosecution recognized this one year

earlier when it abandoned the prosecution after the finding of

no probable cause. Furthermore, the above evidence does not

substantially establish the commission of another crime by clear,

convincing and conclusive proof and, thus, its admission into

evidence constituted prejudicial error and a denial of process.

Secondly, since the incident involved did not make out a

prima facie case nor was it supported by sufficient evidence

under the applicable criteria, use of such evidence was violation

of Petitioner's rights guaranteed under the Sixth Amendment

under this Court’s holding in Burgett v. Texas, 389 U. S. 109,

22

88 S. Ct. 258, 19 L. Ed. 2d 319. Under Burgett, any use during

a trial of other crime evidence which itself is constitutionally

infirm is violative of the Sixth Amendment. From as above,

it is apparent that insufficient evidence existed regarding

the Barnes incident to constitutionally support any conviction

of Petitioner. Thus, its use and the inferences naturally

flowing from such evidence during Petitioner’s trial was

constitutionally prohibited and improper. What the Prosecution

was allowed to do in this case was to take two factually weak

incidents, either one of which would not likely result in the con-

viction of Petitioner, and combine the two and present both

during one trial to capitalize on the prejudicial inference the

trier of fact got out of the other crime evidence and thereby

insure Petitioner’s conviction. This Petitioner submits does not

comport with due process or equal protection guarantees nor

Sixth Amendment Rights.

R.

The Prejudicial Effect of the Other Crime Evidence Far Out-

weighed Its Probative Value and the Trial Court Abused Its

Discretion in Admitting This Evidence.

The second criteria for admission of “the other crime” testi-

mony is that its probative value must outweigh its prejudicial

effect. In determining probative value, one must consider the

value the “other crime” evidence has in proving one or more

of the elements of the charge on trial and must not consider

admissibility on the basis that proof of the commission of the

other crime makes it more probable that the Petitioner com-

mitted the instant crime. This latter inference is unpermissible _

under due process standards. In determining prejudicial effect

under the “balancing test”, the Court should consider the cor-

roborating evidence, if any, and quantum of proof presented

indicating Petitioner’s guilt of the charge on trial independent

of the “other crime” evidence. The Illinois courts have totally

ignored this consideration. The case at bar involved a single

23

witness, the prosecutrix, who was totally uncorroborated by

any other testimony or other evidence. The outcry testimony in

reality did not amount to corroboration at all, but rather seri-

ously undermined the prosecutrix’ credibility because of the

lengthy delay and lapse of approximately seven hours between

the incident and the first outcry. The police were not called

for over a week after the incident. No physical evidence was

presented to corroborate the prosecutrix in the nature of the

alleged weapon, bruises, a cut on her hand, torn clothing or

medical reports. In fact, no medical examination was made.

Added to this, the factual contest of the prosecutrix’ testimony

is inherently suspect where, by her own admission, she was on

a date the evening in question with the Petitioner, whom she had

previously known and was seen in public with, and consentually

returned with him to her apartment by her own invitation late

at night where she remained for over 4% hours. This is

especially so when one considers that by the prosecutrix own

admission she and the Petitioner were seated on the couch

engaging in consentual kissing and petting (Record pp. 158-

168-170-171) and talking about going to bed together (Record

pp. 170-180). Clearly, the absence of corroborating factors in

a factual context such as this cannot be said to present an

overwhelming case of rape or a solid prosecution case. Thus, it

must be conceded that the State’s case, factually, was inherently

weak. For this reason, the “other crime” evidence weighed

heavily and hence its prejudicial effect was great un the one

side of the balancing test. This in itself is sufficient in and of

itself to cast the admission of such evidence in a Constitutional

context equivalent to a denial of due process. However, when

the inconclusive and unconvincing nature of the “other crime”

evidence, as argued above, is added to this fact, the prejudicial

effect and due process infringement is further magnified.

Furthermore, not only does the “other crime” evidence fail

to meet admissibility standards on the prejudicial effect side of

the scale, close analysis of this evidence also shows that it had

little, if any, probative value bearing on any of the issues in

24

the trial and, therefore, shouldn’t have been admitted for this

additional reason.

The “other crime” evidence in this case was admitted not so

much on a theory of a comprehensive “common scheme” be-

tween the two incidents because the two situations between

Barnes and Petitioner and Banich and Petitioner are really quite

dissimilar. On the contrary, the other crime evidence was ad-

mitted based solely upon one common aspect between the two

cases, i.e. the placement of an employment ad. Aside from this

aspect, the two factual situations are totally dissimilar. No knife

was used in the Barnes incident. No rape or assault took place

in the Barnes incident. No evening out or invitation to go out

on a date or to a ball game existed in the Barnes situation. On

the contrary, Barnes, herself, repeatedly had to invite Peti-

tioner to her apartment for a porno-marijuana party before he

finally accepted and attended. This, in itself, belied any infer-

ence that the State contended existed in the ads as demonstrating

a scheme to get acquainted with or lure girls into a situation

where Petitioner might sexually assault them. Barnes’ testimony

did not establish any “scheme” so to speak in this regard.

Clearly, it was not probative as to motive, design or intent

because Petitioner never sexually assaulted Barnes. It was not

probative to the issue of identity because identity was never

an issue in this case, and the Petitioner readily admitted being

with the prosecutrix the entire evening and the State had ample

other witnesses to corroborate the identification of Petitioner in

the form of the persons attending the party.

The only real issue in this case presented at trial was whether

the sexual assaults took place and whether they were forcible.

When one considers this, it becomes so patently obvious that

not only was Barnes’ testimony not probative to these to aspects

or issues, but really did not corroborate Banich in this regard.

Barnes was not raped or assaulted. Petitioner used no weapon

with her and immediately desisted upon her slight verbal (not

physical) resistance. How, then, can such testimony be proba-

tive as “common scheme” evidence to establish a forcible non-

25

consentual sexual assault? This question is rhetorical and the

answer obvious—it simply is not. Then, the question remains:

what probative value did it have?, and the answer is simply:

none.

Thus, it is apparent that the only part such evidence played

in this trial is the prejudicial effect it had in presenting Prti-

tioner in a bad character and casting him as a bad person who

because of this incident with Barnes “probably” commited the

incident with Banich. This is the very vice of other crime

evidence and its use in this context violates fundamental fairness

and substantial due process considerations.

c.

The Other Crime Evidence Was inadmissible Because It Did

Not Fall Within the Common Scheme Exception.

It is apparer.t, as was shown above, that because of the

important and numerous discrepancies and differences in the

two factual situations, that Barnes’ testimony not only did not

establish any common scheme but, in fact, refuted a common

scheme. The only aspect the two incidents had in common was

an offer of employment contained in a newspaper ad and even

then the nature of employment between the two incidents varied,

one being for a permanent full-time secretarial position and the

second (Barnes) being a one-shot clerical, spare time, at-home

service. At any rate, this bare thread of similarity, i.e. the “want

ad” is too contrived and shallow a pretext upon which to validly

bottom the contention that a common scheme exists. This is

especially so when all the other factors surrounding the two inci-

dents establish a gross dissimilarity between the two so as to

preclude any valid hypothesis that commission of the one indi-

cates a probability of commission of the other. As was pointed

out above, a weapon was allegedly used in the Banich matter;

none was used on the Barnes matter. An alleged rape and deviate

sexual assault occurred with Banich and none with Barnes.

26

Banich testified Petitioner allegedly refused to stop when she

repeatedly asked him not to do it, while Barnes testified he

immediately stopped when she said it would constitute rape. The

Barnes incident occurred January 23, 1975 (Record pp. 278-

24°) about one week subsequent to the Banich incident. Osborn

allegedly repeatedly called Banich for a date and took the ini-

tiative in this regard. Whereas in the Barnes incident, it was

Barnes who repeatedly called Petitioner to pick up his papers

and bring his porno movies over to her party, while Petitioner

demonstrated almost reluctance to visit her apartment (Record

pp. 278-279-280-281-291-293). The Barnes incident involved

a party at her place where she invited the Petitioner to stay

overnight after a porno and marijuana party. In Banich’s case,

it was a date situation where they went out to a basketball game,

party, and returned to the prosecutrix’ apartment allegedly at

the Petitioner’s suggestion. In the Banich incident, there is sexual

foreplay in the nature of kissing and petting, whereas in the

Barnes situation the Petitioner allegedly merely announced his

attention to “ball” Barnes out of the blue after initially seeing

her disrobed upon her bed (Record pp. 300-287-288). Deviate

sexual conduct was allegedly engaged in in the Banich case,

whereas nothing of that nature was attempted or indicated in

the Barnes incident (Record p. 316). In the Barnes incident,

the Petitioner never ordered Barnes to disrobe or attempted to

disrobe her himself and never fondled or attempted to fondle

or touch her breasts, vagina or any other part of her body,

whereas this conduct was alleged to have occurred with Banich

(Record p. 316). In the Banich incident, the Petitioner allegedly

disrobed; in Barnes’ case, he did not (Record p. 77). In Banich’s

case, after the alleged incident, she ordered the Petitioner out -

of her apartment, but he refused to leave and remained another

45 minutes talking about why he allegedly did it and his general

philosophies on pre-marital sex and sexual experiences (Record

pp. 82-83-84), whereas in the Barnes’ case he left immediately

upon being ordered out by Barnes (Record p. 288).

27

Another factor exists in this case further showing how

prejudicial the “other crime” evidence was in this trial. Barnes

did not merely testify to the common aspect of the case, i.e.

the placing of the ad by Petitioner. She testified in denial to the

minute specifics of the entire incident between herself and Peti-

tioner. Even if such evidence was admissible for the limited

purpose of the ad, the Trial Court must take particular care to

limit_the extent of such testimony solely to the probative and

relevant similarities and avoid going into the details of the

other crime which are not relevant. In this case, the Court abused

its discretion by letting the entire other incident and all of its

surrounding details and the Appellate Court endorsed the error

and ignored it.

Thus, from the above, it is apparent that by close analysis

the two incidents really have no common denominator or modus

operandi that permeates the incidents or that so interrelates

them as to make such evidence of a common scheme as to the

other. The only common factors between the two incidents is

that both incidents had sexual overtones (albeit the sexual

connotation of the two incidents are grossly divergent) and the

prosecutrix in each became acquainted with Petitioner through

employment ads he had placed.

It is submitted that in light of the vast differences between the

two incidents these two slightly similar factors cannot justify a

conclusion that a common scheme was shown to exist upon

which to base admission of such prejudicial evidence. If the first

aspect (sexual overtones) was a valid consideration, then in all

cases where a defendant is charged with multiple sex offenses,

one would be admissible as proof of the other under common

scheme, despite any other consideration of identity between the

incidents and without regard to even the character or nature of

the alleged sexual conduct involved. Clearly, this is not the law.

The remaining aspect in common, i.e. the employment ad, is

simply insufficient to establish a “common scheme”. As was

pointed out previously, its only probative value was to identify

28

Petitioner as the ad placer, if that factor was in issue in this case.

But identity in the Banich case was never a factor and not in

issue. The Petitioner never denied placing the ad or being with

Banich at the basketball game, the party or her apartment. The

“ads” placed in the two cases were, themselves, surrounded by

different circumstances and were not identical or similar. In

Banich, the ad was for a full-time secreiarial position calling for

the applicant to call a telephone number for a job interview. After

Ms. Banich called the number, an interview was arranged

whereby she wer* to Osborn’s apartment. Thereafter, Osborn

repeatedly called until they eventually went out on a date. In the

incident with Barnes, she answered an ad for a one-time collating

job where work was dropped off at her apartment to be done at

her leisure for a fixed price; after completion of which, she had

to repeatedly call Osborn to come over to pay her and pick it up.

Only incidentally thereto did the invitation to the marijuana-

pornography party ensue at Barnes’ initiative. Thus, even the

ads, themselves, aside from relevancy and probative value, do

not possess the requisite identical characteristics upon which to

base a contention of “common scheme” evidence.

The Illinois Courts have totally ignored and utterly failed to

consider the numerated factors set forth above enumerating

gross dissimilarity between the Barnes incident and the Banich

incident. These factors tcetally destroy and contradict the total

rationale of the opinion finding that the two incidents reflect a

modus operandi. In short, the Court considered only the com-

mon factors of each incident and totally ignored the many dis-

similarities. When both are properly considered and compared,

the comparison clearly establishes that the Barnes incident does

not establish any common scheme and, in fact, refutes and im-

peaches the testimony of Banich.

29

CONCLUSION.

For these reasons, a Writ of Certiorari should issue to review

the judgment and opinion of the Illinois Supreme and Appellate

Courts.

Respectfully submitted,

SERPICO, NOVELLE, Dvorak &

NAVIGATO, LTD.

By: /s/ RoBEerT A. NOVELLE

Robert A. Novelle

Counsei for Petitioner

SERPICO, NOVELLE, DvoRAK &

NAVIGATO, LTD.

54 West Randolph Street

Chicago, Illinois 60601

(312) 641-5566

Of Counsel

30

CERTIFICATE OF SERVICE

The undersigned, being first duly sworn, on oath deposes and

says that a true copy of the attached and foregoing Petition for a

Writ of Certiorari in the case of Mark L. Osborn v. State of

Illinois was personally served on Bernard Carey, State Attor-

ney, Richard J. Daley Civic Center, Chicago, Illinois, and

William J. Scott, Attorney General of the State of Illinois, 188

W. Randolph St., Chicago, Illinois, on this the day of

June, 1978

Subscribed and Sworn to before me this 23rd day of June,

1978.

/s/ PATRICIA ZUCKER

(SEAL)

Al

APPENDIX

EXHIBIT “A”

76-542 4

“ THE PEOPLE OF THE STATE Appeal from the Cir-

OF ILLINOIS, / cuit Court of Cook

Plaintiff-Appellee, \ County; the Hon.

VS. Saul A. Epton,

Judge, presiding.

MARK L. OSBORN, ihe .

Defendant-A ppellant. J

Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of

the court:

After a bench trial, Mark L. Osborn (defendant), was found

guilty of rape (ill. Rev. Stat. 1975, ch. 38, par. 11-1) and two

acts of deviate sexual assault (par. 11-3). He was sentenced to

5 to 15 years on the rape conviction. He appeais.

In this court, defendant contends that the court erred in

admitting hearsay outcry evidence and in considering evidence

of other crimes or criminal acts disassociated with the charges

for which defendant was tried; the evidence was insufficient to

prove defendant guilty beyond a reasonable doubt and the court

considered improper evidence in sentencing the defendant.

The complainant testified that on December 2, 1974, she

made a telephone call in response to a help wanted advertise-

ment in the Chicago Tribune. She recorded her name and phone

nunvber on the telephone answering machine. On December 15,

the wiiness received a return telephone call from a man who

identified himself as Doctor Mark Osborn of the National Insti-

tute of Behavior Counseling. During this call a job interview

was scheduled. Three days Jater the witness met defendant in

A2

the prearranged location, a Chicago apartment with appearance

similar to an office. A 15 minute interview was ended with no

decision about the job. Defendant later told the witness that he

lived in the apartment.

The witness testified that on January 11, 1975, defendant

called and invited her to a hockey game. She refused. On

January 17, defendant again called. He said he wanted to finish

discussing the job interview. He invited her to attend a basketball

game with him and another couple. She told him that she was

going to a party at a friend’s home. They agreed to go to the

party and also to the game the following evening.

The witness further testified that she and defendant went to

the party at the apartment of her friends David and Nickey

Krause. After defendant's friends, Howard McArthur and a

woman named Nancy, arrived at the party, the two couples went

to a basketball game. They returned to the party where they

stayed until about 12:30 a.m. After the two couples left the

party, defendant remarked that it was a cold night and asked the

witness whether he could come up to her apartment for coffee

and she agreed.

The witness fixed a hot drink for defendant and they con-

versed for a short time. Defendant then said, “I usually go to

bed with everybody I go out with.” The witness testified that she

responded, “I don’t.” Defendant also said, “[I]f I don’t go to

bed with a woman I don’t call her again.” The complainant

answered, “[T]hat’s fine with me, you don’t have to call me

again.” After further conversation, at defendant’s request the

witness brought him a beer, which he preferred over the tomato

juice she had also offered.

Defendant said he planned to leave but first had to use the

washroom. The witness testified defendant then walked down a

hall where the bathroom was located directly to the left of the

kitchen. The witness did not see him enter the bathroom and he

returned 8 to 10 minutes later. Defendant sat next to her on the

couch and said, “I don’t want to alarm you but I’m going to

A3

have sex with you.” He grabbed and squeezed her throat and

pushed her back onto the couch. Defendant lay on top of the

witness and held a knife at her throat. She testified she recog-

nized the knife as a steak knife from her kitchen drawer. She

tried to scream but was unable to do so.

Defendant ordered the witness to undress while he counted

up to five. He got up and stood next to the couch. She did nothing

but told him, “I know who you are and I know where you live.

You can’t do something like this.” Defendant told her, “[I]f you

go to anybody or you say anything [ll come back here and get

you.” He squeezed her throat harder than he had the first time.

When the witness tried to push him away, defendant continued

to hold the knife at her throat. She testified further that defend-

ant said, “you don’t believe I’m going to use this knife * * *”

and then ran the knife blade across her thumb, piercing her

skin. When defendant again ordered her to undress, she complied

and he also removed his clothes.

The complainant related that defendant refused her request

for permission to leave the room to remove a sanitary device

she wore because of her menstrual period. She removed the

device in the living room upon defendant's order. The witness

was crying and asking defendant to “get out” and to “please leave

me alone.” She testified that defendant then pushed her onto the

couch and forced her mouth into contact with his penis for 5

seconds. He then placed his mouth on her vagina for about a

minute. The witness was crying and sobbing. Defendant lay on

top of her, forced her legs apart and engaged in three acts of

intercourse during the next half hour. She testified that during

this time she cried and held her hands over her face.

After the final act of intercourse, the witness told defendant to

get out and he permitted her to put on clothing. Defendant

remained in the apartment for 45 minutes. The complainant

related, during this time defendant warned her that “nobody

better find out about this.” He left the apartment at about 4 a.m.

A4

The witness testified that she stayed on the couch, wrapped

in blankets until she arose at about 10 the next morning. At that

time, she telephoned the Rape Crisis Line and to the person who

answered she said that she “wanted to report a rape.” She did

not speak to a member of the organization which operated the

crisis line. About 1 minute later, she telephoned her friend

Nickey Krause and told her she had been raped. She also said

that she was “afraid to be in the apartment because Osborn had

threatened to come back.” About an hour later, the witness

also called her mother, That night she slept at the Krause

apartment,

During cross-examination, the complainant testified that she

met defendant on January 18 because she was interested in the

job but that she and defendant did not discuss employment that

evening. When she and defendant were sitting on the couch after

the witness had brought him a hot drink, defendant put his

arm around her and did not remove it when told to do so. He then

touched her breast and was “getting friendly” with her.

That evening, she stated during cross-examination, she did not

see defendant in her kitchen. When he returned from the bath-

room she did not see his hands. The kitchen is 6 to 7 feet further

down the hall from the bathroom. She also testified that she took

a shower soon after defendant left her apartment. She did not

speak to the police until the Saturday following the incident and

she did not go to a hospital until two weeks later when she

obtained a venereal disease test. She testified that she did not tell

her mother about the rape during their telephone conversation

on January 19.

David Krause testified that during the party at his apartment °

on January 18, he saw the complainant remove her arm from

defendant's hand and shrug his hands from her shoulders. He

also related that he and his wife went to the complainant's

apartment the afternoon of January 19 and took her back to

their apartment where she stayed overnight. When they arrived

at the complainant's apartment that afternoon, she was pale and

AS

white and had circles under her eyes. The witness did not see

her hand at that time. Nickey Krause corroborated the fact that

she had received a telephone call from the complainant on the

morning of January 19.

Linda Barnes testified for the State that on January 16, 1975,

she called the defendant in response to a help wanted newspaper

ad, One hour later, at 11p.m., defendant came to her apartment

and-eft materials which she was to collate and stap's for a fee

of $15. She testified that when defendant did not pick up the

materials on January 19 as they had agreed, she tried to contact

him several times by phone.

On January 23, the witness told defendant by telephone that

she needed the money for her services and told him to cume to

her apartment that evening. She testified, defendant arrived at

the apartment about 10:30 or 11 p.m. The witness, her husband

and another couple were present. They watched vacation movies

and two films defendant had brought. The witness described these

two films as “pornographic.” When the other couple left, defend-

ant began to fall asleep. At the witness’ suggestion, defendant

stayed the night in the guest room,

Mrs. Barnes further testified that the next morning, after her

husband had left, defendant stood in her bedroom doorway and

“asked if he could get in bed with me.” She answered “No” and

defendant said “he wanted to ball me.” She again refused, The

witness went into the kitchen followed by defendant. He made

out a check for her work, they talked briefly and defendant

gathered his belongings to leave, She testified that while they

were standing in the foyer, defendant grabbed her by the throat,

said “we were going to bed together,” and backed her into the

bedroom while holding her throat. He tore her robe partially

open, When the witness told defendant to understand that “it

was a rape,” he pushed her onto the bed and left.

On cross-examination, she stated that an attempt rape charge

against defendant based on the incident in her apartment had

A6

resulted in a finding of no probable cause at the preliminary

hearing. She also testified that she had invited defendant to

her apartment for a party the night of January 23 and had asked

him if he would like to bring pornographic films.

Howard McArthur, a defense witness, testified that on January

18, after he, his date, defendant and the complainant left the

Krause party the second time, he remembered that the complain-

ant invited defendant to come to her apartment. He stated a

verbatim version of the conversation. However, the witness could

not remember what date the party was held, what time he left

the party, whether or not he went to a basketball game or what

time they returned to the party after the game.

Defendant testified that he called for the complainant at her

home. He escorted her to the Krause party where they stayed

about 45 minutes. They met Howard McArthur and his date

there and they all went to the basketball game. The complainant

did not object to his “quick” kisses, to holding hands or to his

putting his arm around her. They then all returned to the party

where he and complainant had the same amount and type of

physical contacts. All four of them left the party together.

Defendant and the complainant returned to her apartment at her

invitation, She asked him to go there and “have a drink.”

Defendant testified further that in the apartment they put their

arms around each other. They kissed and petted to the point of

intimate physical contact until the complainant requested him to

stop because she was having her menstrue! period, No sexual

intercourse or other intimate sexual contact occurred between

them. Defendant related that they conversed and watched tele-

vision. After the program ended, about 2 or 2:30 a.m., she asked °

him if he had selected someone for the job. He told her that he

had. After a short conversation the complainant told him to leave

“right now” because she was very tired.

On cross-examination, defendant admitted that he was neither

a medical doctor nor a PhD. He stated that the institute for

-

A7

Behavioral Counseling was his organization and had been in

existence for 6 months prior to the complainant’s application for

a job. Three other persons in the field of psychology were affili-

ated with this counseling service. Defendant could remember

none of the names of these three associates in his business.

Defendant first urges that testimony by the complainant

regarding statements she herself made on the telephone to the

“rape crisis” people and to her friend Nickey Krause; and state-

ments testified to by Nickey Krause which she made on the

telephone to the complainant are improper as hearsay, We

disagree, The situation concerns testimony by witnesses who

are under oath and subject to cross-examination in open court

regarding statements which these witnesses themselves made.

This situation is governed by the leading and frequently cited

case, People v. Carpenter (1963), 28 Ill. 2d 116, 120-22, 190

N. E. 2d 738. Since the witnesses in the case before us testified

only as to what they themselves said, and were available for

cross-examination, their testimony was not hearsay. The case

before us is, therefore, not a situation in which an attempt is

made to introduce testimony by a third person regarding state-

ments made by a complainant. There is no issue of remoteness

of the declarations here from the point of view of an exception

to the hearsay rule since we are dealing only with statements

made by the witnesses themselves which are not hearsay. This

testimony was properly received by the trial court. Carpenter;

People v. Johnson (1976), 42 Ill. App. 3d 425, 432-33, 355

N. E. 2d 699, leave to appeal denied, (Jan. Term 1977),

i Fee ; see People v. Poole (1970), 121 Ill. App. 2d

233, 238-39, 257 N. E. 2d 583.

Defendant also contends that complainant’s statements to the

Rape Crisis Line and to Nickey Krause on the morning of Janu-

ary 19 were inadmissible as self-serving declarations. This

specific objection was not raised at trial and is therefore waived

for purposes of appeal. (People v. Hampton (1977), 46 Ill. App.

3d 455, 463-664, 360 N. E. 2d 1333 citing People v. Jones

A8

(1975), 60 Ill. 2d 300, 306-07, 325 N. E. 2d 601.) Even without

the waiver, the principle advanced by defendant applies only to

proof by a party of his own self-serving statements. (People v.

Colletti (1968), 101 Ill. App. 2d 51, 55, 242 N. E. 2d 63,

cert. denied, 396 U. S. 927.) The complainant was not a party

to these proceedings. See People v. O’Neal (1976), 44 Ill. App.

3d 133, 136, 358 N. E. 2d 47, leave to appeal denied, 64 Ill.

2d 598.

In this court, defendant also asserts that complainant’s testi-

mony that she stated she had been raped was not admissible as a

corroborative complaint under People v. Damen (1963), 28 Ill.

2d 464, 193 N. E. 2d 25. This question was not raised in the

trial court in any manner and is accordingly waived. (Hampton;

People v. Harvey (1976), 41 Ill. App. 3d 869, 870, 354 N. E.

2d 393.) Further, in light of complainant’s clear and convincing

testimony on direct examination that she had been raped by

defendant and the corroborative common design evidence, as

above reviewed, we cannot conclude that admission in evidence

of her subsequent complaints could have been plain error, affect-

ing substantial rights. See People v. Howell (1975), 60 Ill. 2d

117, 120-21, 324 N. E. 2d 403; People v. Harbarugh (1976),

40 Ill. App. 3d 295, 299-300, 352 N. E. 2d 412; Ill. Rev. Stat.

1975, ch. 110A, par. 615(a).

Defendant charges that the trial court improperly received

the evidence of Linda Barnes as above summarized, It is correct

that as a general rule the courts of Illinois have rejected efforts

to prove guilt of the offense on trial by proof of other crimes

allegedly committed by the defendant. (People v. Stadtman

(1974), 59 Ill. 2d 229, 231, 319 N. E. 2d 813.) However, as -

exemplified by two recent decisions of the Supreme Court of

Iilinois, the exception has been strongly established that evidence

relevant to the issue of guilt of the offense on trial may be ad-

missible even though it may also tend to establish guilt of the

commission of another crime. Where the challenged evidence

“goes to show motive, intent, identity, absence of mistake or

A9

modus operandi * * ** it is admissible though it may incidentally

show the commission of a separate offense. (People v. McDonald

(1975), 62 Ill. 2d 448, 455, 343 N. E. 2d 489 and cases there

cited. See also People v. Romero (1977), 66 Ill. 2d 325, 330,

362 N. E. 2d 288.) In McDonald, the court paraphrased the

principle as providing “that evidence of other offenses is ad-

missible if relevant for any purpose other than to show propensity

to commit a crime.” 62 Ill. 2d 448, 455.

The issue before us is whether the trial court abused its dis-

cretion in admitting Barnes’ testimony as evidence of a common

design or modus operandi. in reviewing the admissibility of this

evidence, we must determine whether “all of the evidence shows

that both crimes were ‘so nearly identical in method as to ear-

mark them as the handiwork of the accused’ * * *.” (People v.

Emmett (1975), 34 lll. App. 3d 167, 170, 340 N. E. 2d 235

quoting McCormick, Evidence § 190, at 449 (2d ed. 1972).)

In three recent decisions involving convictions for sex offenses,

this court has analyzed several points of comparison between

details of the offenses charged and testimony offered to prove

defendant’s commission of other crimes as proof of a common

design. (People v. Therriault (1976), 42 Ill. App. 3d 876, 356

N. E. 2d 999, leave to appeal denied, (Jan. Term 1977), ..........

Ill. 2d, Emmett, 34 Ill. App. 3d 167; People v. Scott

(1972), 4 Ill. App. 3d 279, 280 N. E. 2d 715, leave to appeal

denied, 52 Ill. 2d 596.) In these cases, in upholding the admissi-

bility of the evidence of other crimes we considered several com-

mon factors with no single element of similarity or combination

of such elements emerging as essential to the competence of the

testimony. However, these decisions reveal several significant

points of comparison which were relied on to support the ad-

m sibility of the common design evidence.

In Therriault, defendant gained entry to the victims’ homes

through kitchen windows. This was his common method of ini-

tial contact with both women. In Emmett and Scott, defendants

followed eventual victims into elevators in their apartment build-

A10

ings. In Emmett, defendant initiated conversations with both

victims. (34 Ill. App. 3d 167, 170.) The type of force used

against the victims was significant in Emmett where defendant,

while holding a knife, put his hand over one victim’s mouth and

his arm across the other’s neck. In Scott, defendant threatened

and cut the complainant with her own knife. In the other offense

he only threatened the woman with a knife. The location of the

sexual attacks was commented on in Therriault and Emmett

where the offenses occurred on the bed of each victim after de-

fendant had forced her to lie or sit thereon. Finally, the time

span between offenses was held to be among the relevant cir-

cumstances in showing common design. In Emmett, (34 Ill. App.

3d 167, 170), the crimes were 12 days apart and in Therriault

one month intervened between the offenses. (42 Ill. App. 3d

876, 886.) In all three of these cases the challenged evidence of

other crimes was held competent.

Close examination of the Linda Barnes testimony and com-

parison with that of the complainant shows a number of strong

elements of factual similarity as in the cases above cited. In both

cases, the woman made contact with the defendant by means of

a newspaper advertisement for help. In both cases, the original

contact was for employment but, in good part-as a result of the

efforts of defendant, the relationship soon broadened into a

social and more personal type of contact. Both of the incidents

occurred in the privacy of the homes of the respective com-

plainants to which defendant had been invited. In both situations

defendant expressly told the woman he was going to have sexual

relations with her. In both cases he depended upon physical

force in commencing to obtain his stated desire. In both instances

he seized the woman forcefully by the throat. In both cases, how-

ever, the defendant’s conduct was sexually motivated. In

McDonald, the supreme court pointed out four examples of

paralellism between the offenses. (62 Ill. 2d 448, 455.) Evidence

of the former incident was held competent. It is correct that in

the case before us differences between the two situations existed.

All

But, in our opinion, the factual similarities between these two

situations are so strong and persuasive that they are sufficient to

make evidence of the earlier offense relevant as proof of the

existence of a common design and modum operandi. We note also

that the testimony of Linda Barnes stands uncontradicted.

Defendant maintains that the testimony of Linda Barnes was

inadmissible because it did not establish the commission of a

crime. Defendant correctly points out that in People v. Scott

(1973), 13 Ill. App. 3d 620, 301 N. E. 2d 118, the court stated

that prior to admission of evidence of other crimes “it must first

be shown that a crime actually took place and that the defend-

ant committed it * * *.” (13 Ill. App. 3d 620, 626.) In

Scott, evidence of defendant's possession of checks imprinted

with names other than his was held inadmissible in a trial for

armed robbery occurring in an office building where the State

failed to connect the checks with any of the offices or tenants of

the building. In the record before us, the testimony of Barnes that

defendant grabbed her throat, announced his intention to “go

to bed” with her, forced her into the bedroom and tore her robe

partially open was convincing proof of the crime of attempt

rape, being a substantial step toward the commission of rape

with the specific intent to commit that offense. People v. Almond

(1975), 31 Ill. App. 3d 374, 377-78, 333 N. E. 2d 236; Ill.

Rev. Stat. 1975, ch. 38, par. 8-4; see People v. Miller (1976),

40 Ill. App. 3d 761, 762-63, 353 N. E. 2d 145.

Defendant places heavy emphasis on the fact that, after the

Linda Barnes incident, a charge of attempt rape was dismissed

after a preliminary hearing. Defendant cites People v. Butler

(1975), 31 Ill. App. 3d 78, 334 N. E. 2d 448, leave to appeal

denied, 61 Ill. 2d 598. Defendant further relies on Butler in

arguing against the reception of the Barnes testimony because

its probative value was outweighed by its prejudicial impact. In

Butler, defendant was tried before a jury for armed robbery of

a store manager. The State’s theory was that defendant had

previously committed another armed robbery of the same person

A12

at a different store in the same town. The State offered evidence

of the earlier robbery, as to which defendant had been acquitted,

as proof of identification. This court reversed a conviction for

the second robbery on the theory that the evidence of the earlier

crime was prejudicial. The complaining witness had testified at

length regarding the details of the first offense which “were

clearly unrelated to the crime in question and were unnecessary

to establish identity * * *.” (31 Hl. App. 3d 78, 81.) The Butler

court also pointed out that the majority American rule is that

acquittal of the prior offense does not necessarily render evi-

dence thersof incompetent. The prior acquittal does not require

application of the theories of estoppel by verdict of res judicata.

31 Ill. App. 3d 78, 81 n. 2.

As we have previously set out in detail, the substance of

Barnes’ testimony was probative of a common design or modus

operandi. Butler is distinguishable, therefore, because in that

case details of the other offense unnecessary to the identity issue

were admitted in evidence. Further, the holding in Butier was

based on the determination that the prejudicial impact of the

evidence upon the jury outweighed the probative value of the

testimony (31 Ill. App. 3d 78, 81). The operation of the

balancing test used in Butler is of minimal value in a bench trial

where the evidence is fully disclosed to the court so that its

admissibility may be decided.

Defendant also urges along these same lines that Barnes’

testimony was not admissible because it did not prove commis-

sion by defendant of rape or deviate sexual assault, the offenses

for which he was on trial. We cannot agree. The law of Illinois

does not require that both offenses be identical. People v.

Yonder (1969), 44 Ill. 2d 376, 390, 256 N. E. 2d 321, cert.

denied, 397 U.S. 975, and People v. Lehman (1955), 5 Ill. 2d

337, 343, 125 N. E. 2d 506, demonstrate that the critical ques-

tion is not identity of the two offenses but is whether a com-

parison of the acts as a whole in both offenses demonstrates a

common design and the same modus operandi.

Al3

We conclude that the proof here shows convincingly the same

modus operandi and that the evidence of Linda Barnes was

competent.

Defendant also cites People v. Ulrich (1963), 30 Ill. 2d 94,

195 N. E. 2d 180. Defendant there was tried for indecent

liberties with a child. The State sought to prove similar acts with

another child, both arising out of the same incident. Defendant

had-previously been acquitted when tried for the former acts.

The supreme court there pointed out that evidence of the former

crime was not only highly prejudicial but would not serve to

prove any factual issue as to the later offense. The decision is

therefore not pertinent here.

Defendant maintains that the evidence was insufficient to

support the findings of guilty because the complainant’s testi-

mony was highly suspect and self-impeaching. He relies upon:

the delayed outcry by the complainant, lack of medical evidence,

absence of evidence of bruises or other trauma in spite of com-

plainant’s testimony that her thumb had been cut, the State’s

failure to introduce the knife in evidence, delay in reporting the

crime to police and alleged discrepancies between the com-

plainant’s testimony on direct and on cross-examination.

In rape cases, we are bound by a special duty to examine the

evidence carefully. (People v. Reese (1973, 54 Ill. 2d 51, 57,

294 N. E. 2d 288.) If the testimony of the complainant is found

to be clear and convincing, that testimony alone will support a

conviction fer rape, despite a denial by defendant. (See People

v. Martinez (1976), 39 ill. App. 3d 934, 937, 351 N. E. 2d

293; People v. Hendon (1975), 33 Ill. App. 3d 745, 749, 338

N. E. 2d 472, leave to appeal denied, 62 Ill. 2d 590.) On the

other hand. if the testimony of the complainant is not clear and

convincing, corroboration is necessary. (People v. Jones (1976),

40 Ill. App. 3d 850, 857-58, 353 N. E. 2d 375, leave to appeal

denied, 64 Ill. 2d 597; see People v. Brown (1975), 32 Iml.

App. 3d 182, 187, 336 N. E. 2d 523.) Minor variances in a

complainant's testimony may go to the question of credibility,

Al4

but will not raise the corroboration requirement where the testi-

mony is otherwise clear and convincing. (People v. Williams

(1975), 33 Ill. App. 3d 219, 222, 338 N. E. 2d 133.) Finally,

in a bench trial, the trial court must determine the weight and

credibility of all testimony presented and “make a finding as to

whether the guilt of the accused had been established.” (Reese,

54 Ill. 2d 51, 59 quoting People v. Walcher (1969), 42 Ill. 2d

159, 165, 246 N. E. 2d 256.) A reviewing court “will not set

aside a finding of guilty unless the evidence is so palpably con-

trary to the finding or so unreasonable, improbable or unsatis-

factory as to cause reasonable doubt as to the guilt of the

accused. [Citation].” 54 Ill. 2d 51, 58.

Upon careful study of the record, we conclude that the testi-

mony of the complainant was clear and convincing that defend-

ant, by squeezing her throat, by threatening and cutting her with

a knife and by physical superiority overcame her resistance and

completed the offenses charged. Under thorough and vigorous

cross-examination, her testimony remained positive and certain

as to all major elements and nearly every minor detail of her

version of the incident. Notably, the trial court expressly found

the complainant’s testimony to be “clear and convincing” and

further stated: “There was no question about her statements. I

doubt that there was an iota of fiction. All fact.”

Defendant’s arguments against the sufficiency of the com-

plainant’s testimony divide into two categories: inherent incon-

sistencies and improbabilities; and lack of corroboration. In the

first category, defendant relies on portions of complainant’s tes-

timony during cross-examination which were not included in her

direct examination. On cross-examination, complainant related ,

that defendant put his arm around her and touched her breast

when they returned to the apartment from the Krause party.

However, the complainant also testified on cross-examination

that during this incident she told defendant to remove his arm

and she moved away from him. Defendant’s additional argu-

ment that the delayed outcry by compiainant rendered her testi-

eS = ee oe

Al5

mony unconvincing is not persuasive. The time between the

complaint of rape and the offense “ ‘will naturally vary in accord-

ance with the circumstances of each particular case and there is

no definite limit of time within which the complaint must be

made.’” Reese, 54 Ill. 2d 51, 58 quoting People v. Garreau

(1963), 27 Hl. 2d 388, 392, 189 N. E. 2d 287.

The record before us shows that the physical and emotional

ordgal of three acts of intercourse and two deviate sexual as-

saults was also accompanied by complainant's physical struggle

with defendant. The incident did not end until very early in the

morning and defendant threatened the complainant before

leaving the apartment. After spending the night wrapped in a

blanket, the complainant arose at 10 a.m. and reported the rape

to both the Rape Crisis Line and her friend Nickey Krause.

Under the circumstances, the delay was not sufficient to cast

serious doubt upon her testimony. Similarly, the 5 to 6 day

interval between the rape and complainant's first conversation

with a police officer does not alter our appraisal of her testimony.

In light of the complainant's statements to the Rape Crisis Line

and to Nickey Krause on the morning of January 19, the delay

in contacting the police does not prove fabrication. We view this

delay as more indicative of consideration whether to tell the

details to the police and involve herself in a prosecution. Fin-

ally, other discrepancies in the victim’s testimony are no more

than minor variances which were properly resolved as credi-

bility questions by the trial court.

Defendant also points to the State’s failure to place the knife

in evidence, the absence of medical evidence of rape and the

lack of corroboration of complainant's testimony that her thumb

had been cut. Under the foregoing authorities, since we have

concluded that the complainant’s testimony was clear and con-

vincing, no corroboration is necessary to support the convictions.

Further, the lack of medical evidence is not critical because such

testimony “is not required to prove a rape * * *.” (Reese, 54

Ill. 2d 51, 58 quoting People v. Boney (1967), 38 Hl. 2d 23.

Al6

24, 230 N. E. 2d 167.) We also note that complainant did obtain

a venereal disease test at a hospital two weeks after the rape.

In addition, even if we found complainant’s testimony to be

unconvincing, corroboration was supplied by competent evidence

of common design or modus operandi. Upon close scrutiny of

the entire record, we are sonvinced that the evidence amply

supports the finding of guilty and is not so improbable or in-

sufficient as to create a reasonable doubt of defendant's guilt.

Defendant objects.to the sentence of 5 to 15 years. He also

objects to evidence which the court heard in aggravation. In our

opinion, since the sentence should be reduced to the statutory

minimum of 4 years, consideration of the latter contention is

not required. Defendant had but one prior misdemeanor con-

viction in another state. No serious physical injury was inflicted

upon the complaining witness. Upon due consideration of all of

these matters, we regard this situation as proper for the exercise

of our authority to reduce the sentence. (Ill. Rev. Stat. 1975,

ch. 110A, par. 615(b)(4).) The sentence is accordingly re-

duced to a minimum of 4 years and a maximum of 8. As thus

modified the judgment for rape is affirmed.

The court found defendant guilty of rape and two acts of

deviate sexual assault. Only one sentence was imposed. We will

accordingly vacate the incomplete judgments entered on the two

counts of deviate sexual assault. People v. Lilly (1974), 56 Ill.

2d 493, 309 N. E. 2d 1.

Judgment for rape affirmed as modified. Judgments for deviate

sexual assault vacated.

McGLOON and O'Connor, Jr., J.J., concur.

ONO TR OT EN