People v. Dorn

• Citation: 361 N.E.2d 353,46 Ill.App.3d 820,5 Ill.Dec. 214
• Decision Date: 31 March 1977
• Docket Number: No. 75--379,75--379
• Parties: , 5 Ill.Dec. 214 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vandal DORN and Ivan Hines, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 353

361 N.E.2d 353

46 Ill.App.3d 820, 5 Ill.Dec. 214

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vandal DORN and Ivan Hines, Defendants-Appellants.

No. 75--379.

Appellate Court of Illinois, Third District.

March 31, 1977.

G. Joseph Weller, Robert J. Agostinelli, Director, Deputy State Appellate Defender, Ottawa, for defendants-appellants.

Michael B. Weinstein, James E. Hinterlong, Director, Ill. State's Attys. Ass'n, Ottawa, Michael M. Mihm, State's Atty., Peoria, for plaintiff-appellee.

BARRY, Justice.

This appeal is brought by the defendants, Vandal Dorn and Ivan Hines, from a judgment of conviction in the Circuit Court of Peoria County for the offenses of rape, deviate sexual assault and intimidation against Hines and for the offenses of rape and deviate sexual assault against Dorn. The facts in this case are the same as those in People v. Sweeney (No. 75--240, 3rd Dist. 1977), Ill.App., 361 N.E.2d 344, and, since the facts are set out fully in that case, we choose not to iterate them here. In addition, the issues raised in this appeal which coincide with issues raised in the Sweeney appeal are decided in accordance with the reasoning set forth in our decision of the Sweeney appeal. (See, People v. Sweeney (No. 75--240, 3rd Dist. 1977), Ill.App., 361 N.E.2d 344). For that reason, this opinion will not reconsider issues decided in the Sweeney opinion.

The first issue to be dealt with in this opinion is whether the evidence failed to prove the defendant Dorn guilty beyond a reasonable doubt. Dorn testified that, about forty-five minutes after the girls arrived at the house, he left to deliver a borrowed car. When he returned, according to his testimony, the complaining witness was already in the bedroom, and when he went to the bedroom, Anderson, without comment and with no force being applied, performed oral sex and joined in sexual intercourse with him. On the other hand, the complaining witness testified that, when Dorn entered the bedroom, he used force to make her perform oral sex and submit to sexual intercourse. When conflicting evidence is presented, it is within the province of the trier of fact to decide which story is to be believed. (People v. McClure (1st Dist. 1976), 42 Ill.App.3d 952, 1 Ill.Dec. 617, 356 N.E.2d 899). A reviewing court will not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt. (People v. Mills (1968), 40 Ill.2d 4, 237 N.E.2d 697; People v. Therriault (1st Dist. 1976), 42 Ill.App.3d 876, 1 Ill.Dec. 717, 356 N.E.2d 999). After a careful review of the record we find sufficient facts in evidence to support the finding of the jury.

The next issue raised by the defendant is whether, on cross-examination of Martha Anderson, the defense counsel should have been allowed to delve more specifically into the witness' knowledge of the unchastity of her companion, Debbie Waddell. The defense was allowed to question the witness as to Waddell's general reputation but was prevented, after an objection by the State, from attempting to elicit the fact that Anderson knew Waddell had been arrested in Florida on a morals charge which allegedly involved prostitution.

Since lack of consent is an essential element of the offense of rape, the general reputation of the prosecutrix for immorality and unchastity may be shown. (People v. Collins (1962), 25 Ill.2d 605, 186 N.E.2d 30). However, this proof must be limited to general reputation, not proof of specific acts. (People v. Collins (1962), 25 Ill.2d 605, 186 N.E.2d 30).

In the case at bar, the defense was examining the prosecutrix, not on her own reputation, but on the reputation of her companion. The relevancy of this testimony is not in issue because the State opened the door to its presentation. Even so, the trial court did limit the examination to general reputation, explicitly excluding any questioning concerning specific acts. The witness admitted Waddell had a bad reputation, after which the following colloquy occurred:

'Q. And when you say she told you she had a bad reputation, what do you mean?

A. She told me she had been pretty wild.

Q. What do you mean by, 'She had been pretty wild."

The trial court sustained the State's objection to the last question.

Where evidence of a person's character is introduced at a trial, such evidence is confined to proof of that person's general reputation. (People v. Willy (1921), 301 Ill. 307, 133 N.E. 859). This general reputation is not established by the personal knowledge of the witness but by what some relevant social group (e.g, people in the community), as a whole, thinks of the person. For that reason, it is improper to cross-examine a character witness as to the witness' own knowledge of particular acts of misconduct on the part of the person whose character is being testified about. (People v. Greeley (1958), 14 Ill.2d 428, 152 N.E.2d 825; People v. Hermens (1955), 5 Ill.2d 277, 125 N.E.2d 500). Such cross-examination is limited to disparaging rumors and conversations which the witness has heard in the community. (People v. Greeley (1958), 14 Ill.2d 428, 152 N.E.2d 825; People v. Willy (1921), 301 Ill. 307, 133 N.E. 859).

From the line of questioning, it is obvious that, although the defense counsel may have begun by asking questions concerning Waddell's reputation, at the time of the objection, the cross-examination was improperly delving into the witness' personal knowledge rather than Waddell's general reputation in the community. As a result, the trial court properly sustained the State's objection.

The defendants contend that the trial court erred in allowing, over a defense objection, the complaining witness to testify about an alleged 'theft' since this evidence of a crime other than those for which the defendants were being tried had no probative effect. The alleged 'theft' referred to was the removal of certain items from the purses of Anderson and Waddell while they were in the Arapahoe Clubhouse.

The general rule is that evidence of the commission of other crimes committed by the accused is inadmissible. (People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120). The exceptions under which such evidence may be admitted include when the unrelated crime aids in establishing identity, or tends to prove design, motive, knowledge or modus operandi or when the evidence of the unrelated crime is so closely connected with the main issues of the crime charged as to justify admission. Under these circumstances, the relevancy of the unrelated crime outweighs any possible prejudice to the defendant. (See, People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489; People v. Therriault (1st Dist. 1976), 42 Ill.App.3d 876, 1 Ill.Dec. 717, 356 N.E.2d 999; People v. Cruz (1st Dist. 1976), 38 Ill.App.3d 21, 347 N.E.2d 227; People v. Scott (1st Dist. 1968), 100 Ill.App.2d 473, 241 N.E.2d 579).

Although the instant case does not fall clearly within any of these exceptions, we are not convinced the testimony was elicited to demonstrate the defendants' propensity to commit a crime, but rather to aid in establishing lack of consent on the part of Anderson and Waddell. Therefore, the robbery is related to and interdependent with the other offenses and, for that reason, the trial court did not err in allowing the testimony into evidence. (See, People v. Sutton (3rd Dist. 1977), Ill.App., 4 Ill.Dec. 180, 359 N.E.2d 1132).

In a related issue, the defendants argue that the trial court erred in failing to give, Sua sponte, a limiting instruction on the use to which the jury could put the evidence of the robbery. Neither party tendered such an instruction. The failure of ...