People v. Phillips , 181 Ill. App. 3d 144 ( 1989 )

JUSTICE LORENZ

delivered the opinion of the court:

Defendant, John M. Phillips, was convicted of aggravated kidnap-ing (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2) and aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14) following a bench trial and was sentenced to concurrent prison terms of six and four years, respectively.

For reasons set forth below, we affirm.

The following facts are undisputed. In the evening of June 23, 1985, Phillips met the complainant, M.B., and her friend, J.C., in Bootleggers, a singles’ bar located near State and Division Streets in Chicago. After spending some time with Phillips, the two women accepted an invitation to go to his parked car for the purpose of indulging in illegal narcotics. M.B. got into the front passenger seat and J.C. got into the back seat behind Phillips. After lighting a marijuana cigarette, Phillips moved the car to a deserted area a short distance away.

Conflicting testimony as to subsequent events, as adduced at trial and pertinent to our disposition, is summarized below.

M.B. testified that Phillips parked the car, opened the glove box, and retrieved a mirror and knife. When she asked the purpose of the knife, Phillips related that it was “to cut up some cocaine.” At that point, J.C. asked Phillips to take them back to their car. M.B. stated Phillips refused, but said he would “in five minutes.” M.B. stated that Phillips then put the knife to her left side. M.B. stated J.C. again asked Phillips to take them back to their car but he again refused. However, Phillips let J.C. out of the car. M.B. testified she attempted to grab hold of the knife but Phillips held both of her hands to her side. She stated Phillips still held the knife to her side and she was afraid.

M.B. stated that when J.C. came around to the passenger side of the car, M.B. told her to get back into the car. At that point, M.B. stated, Phillips pushed the knife farther into her side and told J.C. to go away from the car so that he could “make out” with M.B. M.B. testified she was still afraid.

M.B. stated that when J.C. walked away, Phillips started the car and sped off. M.B. stated she begged Phillips to go back and get J.C. Phillips said they would go back and get her shortly.

Phillips pulled the car into an alley. M.B. stated that he pointed the knife at her and told her, “As soon as you f— me and make me come, we will go back and get your girl friend.” M.B. stated that Phillips removed her clothes, removed his own clothing, and forced her to submit to vaginal intercourse. During the act, she attempted to move her purse, which she was sitting on, because it was hurting her. M.B. stated Phillips again pulled out the knife and said, “I will f— you with this knife if I have to. What are you doing? What are you going to get in your purse?” She testified that Phillips also forced her to orally copulate with him.

M.B. stated that when, at one point, she had to urinate, Phillips allowed her to do so at the side of the car, but kept his hand on her head to restrain her from leaving. When they got back in the car and Phillips tried to force M.B. to orally copulate with him again, she opened the car door and ran, naked, down the alley. M.B. stated that at the mouth of the alley she saw a car with headlights on and motioned the driver to stop. The car was a marked police squad car. M.B. pointed out defendant’s car to the officers and got into the squad car. M.B. stated defendant started his car and sped out of the alley. The police gave chase and eventually captured Phillips.

On cross-examination, M.B. admitted that she and J.C. willingly accepted Phillips’ initial invitation to go to his car to smoke marijuana. She also admitted that later, when Phillips put the knife to her side, she did not tell him to take it away, but asked only what the knife was for. M.B. stated that Phillips “must have been” holding both of her hands with one of his hands while he restrained her because he kept the knife at her side. M.B. also stated that she recalled seeing the knife in Phillips’ hand when he was removing her clothing.

On redirect examination, M.B. clarified that when J.C. got out of the car, M.B. reached her right hand over to get hold of the knife, but Phillips grabbed both of her hands.

J.C. testified on direct examination to the same facts leading up to her exit from Phillips’ car. J.C. stated she eventually found her own car and, after unsuccessfully attempting to locate Phillips’ car, she returned to Evanston where the women were staying.

On cross-examination, J.C. admitted that she was aided by a police officer in locating her car, but she did not express to him any concern for M.B.

Phillips testified to a substantially different scenario. Phillips stated that after the women got into his car, which was parked on Rush Street approximately four blocks away from the intersection of State and Division Streets, he lit a marijuana cigarette and drove to a location under elevated train tracks near Wells Street. Phillips stated that, there, he began to “chop up” cocaine on a mirror with the knife. All three partook of the cocaine. Phillips stated that J.C. asked to get out of the car to be “socially tactful” because she saw him and M.B. “making out” in the front seat. Phillips stated that he did not restrain M.B. by holding her hands or by holding a knife to her side.

Phillips testified he then moved the car to an alley located approximately five minutes away near Ashland Avenue and Augusta Boulevard. During the drive M.B. did not ask him to let her out of the car, but did express concern for J.C. While in the car in the alley, he and M.B. engaged in consensual foreplay and oral sex. Phillips stated they were in the alley for approximately 20 minutes. He stated that, there, M.B. again voiced concern for J.C. Phillips testified a car came down the alley and they could see lights. At that point, M.B. quickly exited the car. Phillips stated that when M.B. ran out of the car he panicked and drove down the alley. Although he noticed that it was a police squad car following him, he did not stop. He was eventually arrested after fleeing on foot.

Chicago police officer Wally Velez testified that at approximately 4 a.m. on the morning in question, he and his partner, Paul Brugger, were in a squad car on patrol, travelling eastbound on Augusta Boulevard. Velez testified that he observed M.B., naked, running toward the police car. The officers immediately pulled over to the side of the street and gave assistance. M.B. said she had been raped. Velez stated she was hysterical. When the officers heard the sound of screeching tires, and M.B. identified defendant’s car as it came into view, the officers gave chase. The car stopped at a fence. Phillips, naked, exited, fleeing on foot. Velez found Phillips hiding under a porch a short distance away and arrested him. Velez testified that when he searched the car a short time later he found the knife in an open position.

Opinion

On appeal, Phillips contends that the State failed to prove him guilty beyond a reasonable doubt. Phillips argues, generally, that M.B.’s testimony was not sufficient to prove that her activity with Phillips was not consensual and that all of the circumstances preceding the sexual activity were consistent with a finding of consent.

It is the function of the trier of fact to weigh the evidence, resolve any apparent conflicts therein, and evaluate the credibility of the witnesses. (People v. Natty (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373.) In a criminal bench trial, these determinations are within the province of the trial judge. (People v. Clemons (1988), 175 Ill. App. 3d 7, 529 N.E.2d 577; People v. Givens (1977), 46 Ill. App. 3d 1035, 361 N.E.2d 671.) Furthermore, determination of the credibility and sufficiency of the evidence will not be reversed unless the evidence was so improbable as to create a reasonable doubt of guilt. (People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.) Thus, as the Illinois Supreme Court has noted, once the defendant has been found guilty in a criminal bench trial, the applicable standard of review is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis added.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Further, as in other criminal appeals, when reviewing a conviction for sexual assault, the testimony of a single witness, if it is positive and the witness credible, is sufficient to support the conviction, even though that testimony is contradicted by the accused. See People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367.

The trial judge below, in the exercise of proper duty, heard all of the witnesses and observed the evidence presented. The complainant testified that although she initially consented to enter Phillips’ automobile, she was later restrained by Phillips against her will from leaving his car, was driven to an alley some distance away, and was there forced by Phillips to engage in sexual acts to which she did not consent. M.B.’s initial consent to enter Phillips’ car cannot reasonably extend to every subsequent event. Further, Phillips does not deny that he and complainant engaged in a sex act, but testified that complainant consented. At best, that evidence is merely conflicting. Resolution of the conflict was properly determined by the trial judge below. Reweighing of that evidence is outside the province of this court. Because the evidence here was only conflicting, and was otherwise sufficient to support the elements of the charges against Phillips, there exists no legally justifiable basis to disturb the trial court’s judgment.

Phillips also contends his conviction for aggravated criminal sexual assault should be reduced to criminal sexual assault, and the cause remanded for resentencing, because the State failed to prove beyond a reasonable doubt that he was armed with a dangerous weapon, or with an object M.B. reasonably believed to be a dangerous weapon, based on the character of the knife.

The offense of aggravated criminal sexual assault is committed when, during commission of a sexual assault, the accused “displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14.) In determining whether a particular instrument constitutes a dangerous weapon, the supreme court has held:

“ ‘Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.’ ” (People v. Robinson (1978), 73 Ill. 2d 192, 202, 383 N.E.2d 164, 169, quoting People v. Dwyer (1927), 324 Ill. 363, 365, 155 N.E. 316, 317.)

For example, in Robinson the court concluded that a fingernail clipper containing a sharp, pointed fingernail file may constitute a dangerous weapon where testimony supports its use as such. Robinson, 73 Ill. 2d at 202, 383 N.E.2d at 169-70.

The knife that M.B. testified the defendant used in the sexual assault was admitted into evidence and was made a part of the record on appeal. It consists of two pieces: a two-inch sharpened metal blade with pointed tip attached to a plastic folding handle of the same approximate length, and a rectangular plastic piece into which the knife and handle, when folded together, conveniently fit.

M.B. testified that when Phillips initially displayed the knife, ostensibly to “cut up” cocaine, she expressed concern and asked what the knife was for. She also testified that Phillips later held the knife to her side, exerting, at one point, additional pressure, to keep her from exiting his automobile. She testified that she was afraid. She also testified that defendant brandished the knife immediately preceding the act of vaginal intercourse and threatened her with it. He again displayed and threatened her with the knife when she reached for her purse during the assault. Although Phillips denies that he used the knife in such a manner, he does not dispute that he, indeed, displayed the knife.

Even if the court accepted defendant’s argument that the knife’s characteristics do not classify it as a dangerous weapon per se, no basis exists to reduce defendant’s conviction given the trial record, containing M.B.’s testimony concerning the use of the instrument in the instant case. Again, the trial judge had before him the same physical evidence and was in the position to assess both M.B.’s and Phillips’ testimony on the basis of credibility regarding the use of the knife. After observing the knife and hearing the above testimony, the trial judge concluded that sufficient evidence existed to sustain a conviction for aggravated criminal sexual assault. M.B.’s testimony alone provides a legally sufficient basis to support that conclusion and, therefore, in light of the proper scope of review to be exercised by the court on appeal, there exists no compelling reason to reduce defendant’s conviction from aggravated criminal sexual assault to criminal sexual assault.

Lastly, in his opening brief Phillips challenges the constitutionality of the statute under which he was convicted of aggravated criminal sexual assault. Phillips also contends he was deprived of a fair trial through introduction into evidence of a pair of handcuffs recovered from his car and related comments made by the State during closing argument at the conclusion of trial. Phillips, however, failed to raise either issue in his written post-trial motion for a new trial and, consequently, has waived those issues for consideration on review. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

MURRAY, P.J., concurs.