author: JUSTICE LORENZ JUSTICE PINCHAM,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HORACE HUNTER, Defendant-Appellant.
    First District (5th Division)
    No. 83—2316
    Opinion filed November 30, 1984.
    PINCHAM, J., dissenting.
    James J. Doherty, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial in which he was found guilty of taking indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, pars. 11— 4(a)(2), (a)(3)), defendant was sentenced to five years’ imprisonment. He appeals, contending that his guilt was not established beyond a reasonable doubt.

We affirm, and pertinent to our disposition are the following:

The victim, D.J., a nine-year-old boy, testified that he lived with his mother, two sisters and his mother’s boyfriend; that on March 30, 1983, he fell asleep on the couch in the living room after watching defendant do some card tricks; that his mother awakened him and sent him to bed at about 8 p.m.; that he went to his bedroom and lay down on his bed fully clothed and fell asleep on top of the covers. He woke up when the defendant came in, but fell back asleep. Defendant woke him up again and took his clothes off, including his underpants. Then defendant took off his own clothes and got into bed with him, holding him close to him with one hand on his mouth and the other around his waist. Defendant then tried to put his “thing” in his butt. For the next 15 minutes he felt the defendant’s hard “thing” by his butt, and the defendant kissed him on the side of his jaw five times. He noticed alcohol on defendant’s breath. After about 15 minutes, the defendant got up and went to the adjoining bed, which was 18 inches away, and fell asleep. D.J. further testified that when he became sure that the defendant was asleep, he got up and went to the bathroom. Then he went to his mother’s bedroom, which was 15 feet away, and told her that the defendant took off his socks, shirt, pants and underpants and tried to put his “thing” in his butt. She told him to lie down, and, after she thought about it, she got up and went to the telephone across the street and called the police. There are no doors on D.J.’s bedroom or his mother’s bedroom. He admitted that he made no attempt to stop the defendant’s actions, nor did he object to defendant’s undressing him, nor did he fight him off when the defendant attempted to put his “thing” into his butt. He admitted the defendant never threatened him. He also admitted he was angry with the defendant for his refusal to teach him a card trick.

D.J.’s mother substantially corroborated his testimony, adding that the defendant is a brother of her boyfriend and that he had just come in from Memphis to seek a job. She was in her bedroom with her boyfriend when D.J. came in and related the occurrence. She stated that it took several moments for her to awaken and understand the full meaning of what her son had said, then she called the police. She took D.J. to the hospital for examination. It was stipulated that there were no visible injuries to him.

Defendant testified on his own behalf that when he entered the bedroom and saw D.J. sleeping in his clothes he woke him and told him to take his clothes off; that D.J. took all but his underwear off and got under the covers; that he then undressed himself and went to sleep in the adjoining bed after he finished smoking his cigarette. He was later awakened by the police and denied doing anything. He admitted that he had three or four shots of whiskey that night.

Opinion

Defendant contends now, as he did in the trial court, that he was not proved guilty beyond a reasonable doubt, and that the evidence was not clear and convincing nor sufficiently corroborated.

He urges this court to place itself in the position of reviewing the factfinder’s determination of the credibility of the witnesses. He points to discrepancies in the testimony of D.J. and his mother and his own testimony. He maintains that D.J. first said that defendant stuck his “thing” in his butt, but later said he attempted to stick his “thing” in his butt. He further notes that D.J. did not cry out or struggle to avoid the act and that the medical report did not indicate any trauma from the purported act.

Our supreme court has held that force is not material to the offense of taking indecent liberties with a child and that acquiescence or failure to resist is no defense to such a charge. (See People v. Guertin (1930), 342 Ill. 99, 104, 173 N.E. 824.) Even consent by the victim is irrelevant (People v. Mullen (1980), 80 Ill. App. 3d 369, 379, 399 N.E.2d 639), and anal penetration is not necessary to secure a conviction (People v. Oliver (1976), 38 Ill. App. 3d 166, 170, 347 N.E.2d 865).

Defendant maintains that because the victim D.J.’s testimony was not clear and convincing nor sufficiently corroborated it was not sufficient to sustain his conviction.

We disagree with defendant’s contention. It is well established that it is for the trier of fact to determine the credibility of witnesses and the weight to be given their testimony, and where the evidence is conflicting a court of review will not substitute its judgment for that of the trier of fact. People v. Akis (1976), 63 Ill. 2d 296, 347 N.E .2d 733.

The trial court here observed that D.J. was a nine-year-old boy; that the defendant was a grown man; and that D.J. promptly told his mother of the defendant’s conduct. Before permitting him to testify, the trial judge examined D.J. as to his understanding of the importance of the oath which he was asked to take and the obligation to tell the truth, and the judge concluded that he was competent. The trial court observed the demeanor and heard the testimony of all the witnesses, considered the forensic evidence, and concluded that the State’s evidence was sufficient to prove defendant’s guilt. Our review of the record does not disclose any basis to indicate that the trial court’s evaluation was erroneous.

The cases relied upon by defendant are distinguishable. People v. Kolden (1962), 25 Ill. 2d 327, 185 N.E.2d 170, involved a complainant who reported the indecent act the day after it allegedly happened but denied the act the same day; she testified that defendant touched her “privates,” but admitted on cross-examination that she did not know what “privates” meant, nor did she know where defendant had placed his hand. In People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063, the complainant waited two days to report an alleged indecent act, told several inconsistent versions to different people at different times, and, according to her schoolteacher, had a history of telling wild stories. The court there concluded: “Where the complainant’s testimony is substantially impeached by prior inconsistent statements and a history of fabrication, we will not sustain a conviction based on other testimony which is at best speculative.” (69 Ill. 2d 200, 208.) By contrast, D.J.’s testimony here was plausible, straightforward and consistent. A reading of this record which finds circumstances similar to Kolden or Morgan is, in our view, fanciful.

The judgment of the circuit court of Cook County is therefore affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 as costs for the State’s defending this appeal and incorporate it as part of our judgment.

Affirmed.

MEJDA, P.J., concurs.

JUSTICE PINCHAM,

dissenting:

It is the province of the trier of fact to determine the credibility of witnesses and to weigh the evidence. It is likewise the duty of this court to review the evidence, and, if it is improbable, unsatisfactory or insufficient to establish a defendant’s guilt beyond a reasonable doubt, to reverse the conviction. A review of the evidence in this case reveals that it is improbable, unsatisfactory, unclear and unconvincing, uncorroborated and unsubstantiated and does not establish the defendant’s guilt of indecent liberties with a child beyond a reasonable doubt. I therefore dissent. The complete pertinent testimony of the three trial witnesses follows.

D.J. testified on direct examination that he was nine years old, in the fourth grade and on March 13, 1983, he lived at 901 West 51st Street with his mother, father, two sisters and Horace Hunter, the defendant. On that evening he was asleep on the living room couch, and about 8 o’clock his mother woke him up, he went into his bedroom and went to sleep. He did not undress before he went to sleep. There were two beds in the bedroom, and Horace slept in one of them and he slept in the other. After he went to sleep, the. next thing he remembered was that Horace came into the room and woke him up. He went back to sleep. He was still dressed. Horace woke him up a second time and took off his socks, shirt, pants and underpants. Horace was dressed- at that time, and Horace then took off his own clothes:

' “Q. When Horace took off his clothes what, if anything, did Horace do next?
A. He put his thing in my butt. He tried to.
Q. Now, were you in bed at the time that Horace took off your clothes?
A. Yeah.
Q. Did Horace, when he did that to you, get into your bed or did you get into his bed?
A. Mine.
Q. And when you say Horace put his thing, tried to put his thing into your butt, what, if anything, did he do? How did he get into your bed to do that? Explain it to the Court.
A. He held my mouth and did like this and put his hand under my waist.”

When Horace had his hand over D.J.’s mouth and his other hand over his stomach, he felt something at his butt. It felt like 1 ‘his thing and it was hard.” He was in that position 15 minutes. Horace kissed him five times on the jaw, and he noticed that Horace had liquor on his breath:

“Q. When Horace finished this 15 minutes that you are talking about, what, if anything, did Horace do?
A. Got up.
* * *
Q. Where did Horace go?
A. In his bed.
Q. Is that the other bed in the room?
A. Yes.
Q. And what did you do?
A. I waited until he went to sleep.
Q. When he fell asleep, what did you do?
A. Got up and went to the bathroom.
Q. After you went to the bathroom, where did you go?
A. I told my mother.”

His mother was in another room in the apartment and he told her that Horace took off his socks, pants, shirt, underwear and tried to put his thing in his “butt”:

“Q. And what did your mother do after you told her that?
A. She told me to lay down and she thought about it.
Q. Where was that?
A. She thought about it. She got up.”

She went to the telephone booth, and shortly thereafter the police came and Horace was arrested.

D.J. testified on cross-examination that Horace Hunter was his father’s brother. Horace didn’t normally live with them, and he was only there for about three days. He, D.J., did not normally sleep in that room alone. His sister usually slept there with him, but Horace was sleeping in his sister’s bed at that time:

“Q. Is there any door on this bedroom?
A. No.
Q. And your mother and father sleep in a bedroom close to your bedroom, is that right?
A. Right.
Q. Is there any door on their bedroom?
A. No.
Q. How many feet would you say the door of your bedroom is from the door of your parents’ bedroom?
A. About 15.
Q. Is there any curtain on your bedroom door?
A. Curtain?
Q. Curtain like on a window. Is there any curtain or something hanging over your parents’ bedroom?
A. (Shaking head.)”

Right after supper, Horace showed D.J. and his sister card tricks played with three cards, and they had to guess what card Horace was trying to hide from them. Horace hid the card and he could never find it. Horace let his sister find the card, and he asked Horace to show him the trick. Horace said he was not going to show him the trick. D.J. didn’t like that, and he was mad at Horace.

After Horace showed him the card tricks, the adults played cards and he fell asleep. His mother told him to go to his bedroom, which he did, and he fell asleep on his bed. When Horace came into the bedroom, he first tried to wake him up. He got up but Horace thought he was asleep. Horace did not tell him to take his clothes off; Horace took them off:

“Q. When Horace was taking your clothes off, did you ever say to Horace not to do it?
A. No.
Q. Did you ever tell Horace to stop it?
A. No.
Q. Did you ever yell out for your mother?
A. I couldn’t, he was holding my mouth.
Q. And now you say he had his hand over your mouth, is that right?
A. Right.
* * *
Q. Did he make you take your clothes off?
A. Um-hmm.
Q. He took them off himself, right?
A. Right.”

Once Horace took D.J.’s clothes off, Horace then took his clothes off. Horace was standing on the floor when he took his clothes off. He used both his hands to take his clothes off, during which Horace did not have his hands over D.J.’s mouth. Horace did not threaten him at that time. After Horace took off his clothes, he got back in bed with D.J. and tried to put his penis in his “butt.”

D.J. remembered testifying in another courtroom downstairs on April 15 of this year:

“Q. Do you remember — page 10 and 11 — do you remember a State’s Attorney asking you this question: ‘What happened while you were in the bedroom that day?’
A. Yes.
* * *
MR. GOLNEWICZ: Further down you answer, ‘He took off my socks and my pants and my shirt and he took off my underclothes. Then he put his penis in my butt.’
A. Yes.”

At trial D.J. said that he told his mother that Horace “tried” to put his penis in his butt. When Horace tried to put his penis in his butt, he did not cry out. He did not ask his mother or his father for help. Horace did not threaten him nor tell him not to tell anybody. D.J. testified further:

“Q. When Horace was trying to put his penis in your butt, as you say, did you try to fight him off or anything like that?
A. I turned around.
* * *
Q. How long was Horace’s penis in your butt?
MR. KLAPMAN: Objection.
THE COURT: Overruled.
THE WITNESS: About 20 minutes.”

After he told his mother, the police came and took him to the hospital where he was examined by a doctor.

D.J.’s mother testified on direct examination that on March 30-31, Horace Hunter was staying at her house. Horace Hunter, her boyfriend’s brother, had been staying there for three days. He came from Memphis, Tennessee, had no place to stay, and he was sleeping in the room of D.J. and his sister. There were two beds in the room, one for D.J. and one for his sister. Horace was staying in the bed of D.J.’s sister.

At approximately 10:30 or 11 that night she, her boyfriend and Horace had been drinking and playing cards. After they finished playing cards, Horace left, went in the room and said he was going to' bed. Her daughter was not staying in the bedroom at that time; she was on the couch. At about midnight D.J. came into her bedroom. Her boyfriend, Frederick Hunter, was in the bedroom when D.J. came in. D.J.’s mother testified:

“Q. Now, when D.J. came in what did [he] tell you?
A. He woke me up and said he didn’t want to sleep in that room no more.
Q. What happened next?
A. And I asked him why. He said Horace tried to do something to him. Then I asked him what did he try to do? He said he pulled off his socks and pulled off his pants and blouse — I mean his shirt and took — he said his thing and put it in his butt.
Q. Did he say anything else to you about what Horace did?
A. And then he said — and I asked him what else did he do? And he said kissed him five times on the jaw.
Q. What did you do after D.J. told you that?
A. Well, when he told me, you know, when he woke me up I was kind of half sleep and half woke. I really didn’t pay no attention to it. I laid back down and then I thought of what he said and I got up and I told my old man and I told my son, and I told him stay in the room and don’t come out of the room. I was going to call the police. That’s what I did.”

D.J.’s mother went across the street to a tavern. D.J. stayed with Frederick when she went to call the police. She returned to the apartment and the police arrived. She took D.J. to Englewood Hospital.

D.J.’s mother testified on cross-examination that the bedroom that she and Frederick slept in did not have a door, and there was no door to the bedroom in which Horace and D.J. slept. Her bedroom door is about 15 feet from Horace’s and D.J.’s bedroom door. D.J. was not crying and she didn’t know if he was in pain when he first came to her; he just came in and woke her up. D.J. never said that Horace “stuck his thing in his butt.”

D.J.’s mother testified at the preliminary hearing on April 15:

“Q. Did someone ask you this question and did you give this answer:
‘Q. Whose drawers were on?
A. My son. And said he pulled them down in the back and stuck his penis in him.’
Q. Did you give that answer to that question?
A. They must have wrote it down in the wrong way, but he said he tried to.
Q. But then you are saying that you did not give that answer?
A. I might have gave the answer.”

Horace Hunter, the defendant, testified on direct examination that he lived at 2682 McDonald in Memphis with his mother, “his lady,” and his two children. He recently came to Chicago. He received a phone call from his brother, who told him that there were going to be job openings in Chicago and he asked if he could come up. Hunter arrived on Monday, March 28, 1983, and stayed with his brother at 901 West 51st Street, where D.J.’s mother, her two little kids and D.J. lived. On Tuesday and Wednesday, Hunter and his brother, Fred, went looking for a job. They did not have any luck, and they returned to the apartment about 5 p.m. D.J.’s mother and her kids were there when they returned. Later, Fred and D.J.’s mother went to the store, and they were gone between 45 minutes and an hour. When they came back they set out the groceries and had supper.

After supper Horace showed D.J. and his sister a card trick, three-card molly. The object of the game was to find one card among three. Horace teased D.J.; Horace would throw the card and wouldn’t let D.J. find it, but he would let his sister find it. D.J. asked Horace to show him the trick, but Horace would not do so and D.J. could not find the card. D.J. seemed to be angry. D.J.’s mother came over and said, “Cut out playing and let’s get down on some spade, 3-handed spade.” The three adults played spades. They started about 8 and played up until about 11 or 12 o’clock. They were drinking from a fifth of G&J Brandy and a six-pack of beer. Over the three-hour period they did not drink “half of it.”

After the adults finished playing cards, D.J.’s mother and Fred said they were going to turn in and asked Hunter to lift out the couch and “turn the kids in.” D.J.’s sister was sleeping on the couch. D.J.’s mother told him, Horace, to wake D.J. up and “turn him in.”

Hunter went out to the porch, smoked a cigarette and came back into the bedroom where he and D.J. were staying. D.J. was lying on the bed on top of the covers fully clothed. Hunter shook D.J. and told him to take off his clothes. D.J. said there was a knot in his tennis shoe and asked Hunter to take it out, which Hunter did. D.J. took off his clothes. Hunter did not take off any of D.J.’s clothes. D.J. took off his own clothes down to his underwear and got back in the bed, under the cover.

There were two beds in the bedroom, about 18 inches apart. There was no door on the bedroom, just an opening. Hunter’s brother, Frederick, and D.J.’s mother slept in another bedroom, which was about six to nine feet from Hunter’s bedroom door. There was no door on that bedroom either, just an open doorway.

After D.J. went to bed, Hunter sat on his bed, smoked the rest of his cigarette, took off his clothes, lay down and went to sleep. The next thing he remembered, “the police bust in, had the flashlight and throwed the gun on me and told me I was under arrest.” Hunter stepped out of the bedroom and asked D.J.’s mother what was the problem. Hunter testified he did not sexually assault, hit or try to lewdly fondle D.J.

On cross-examination the defendant, Horace Hunter, testified that he drank about three or four shot glasses of whiskey; that D.J. got up and “took all of his clothes off himself”; that within the last 10 years he had been in the penitentiary in Tennessee for burglary.

The following stipulation was presented:

“MR. GOLNEWICZ: Judge, there will be a stipulation by and between the parties of a medical examination by Dr. Lee, which is memoralized in a three-page report ***. What in essence this medical report does say is on March 31st this year at approximately 12:35 in the morning a Dr. Lee examined D.J. After taking various vital statistics under his physical findings, treatment and time he finds no bruises, chest is clear, soft, flat rectal, no bruises, no lacerations. So stipulated?
MR. KLAPMAN: So stipulated.”

On this evidence the trial court found, “The record amply supports a finding of guilty of attempt of anal intercourse which constitutes indecent liberties with a child.”

In People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063, following a bench trial the defendant was convicted of taking indecent liberties with a nine-year-old child. A divided appellate court reversed the conviction on the grounds that the evidence was insufficient to prove the defendant guilty beyond a reasonable doubt. On the State’s request for leave to appeal, our supreme court affirmed the appellate court’s reversal. In Morgan, the mother of the child-victim testified that the defendant visited them in their home shortly after supper, that the defendant drank a “beer or two” with the victim’s mother and her husband, while the victim played and watched T.V. The mother testified further that the defendant fell asleep on the sofa and that she later sent the child-victim to bed. Because she could not awaken the defendant she left him asleep on the sofa. She and her husband then went to bed. The following morning, when she arose, the defendant was gone. It was during the night, the victim-child testified, that the defendant entered her bedroom, awakened her and took her in the living room, pulled down her underpants and kissed her on her “crotch.” The victim later felt a burning and itching sensation in her vaginal area and her grandmother testified that the area was red and irritated. The defendant denied the allegations and denied being at the victim’s home on the date of the alleged offense. The trial judge held that the testimony of the victim’s grandmother was corroboration and specifically stated that it “believed the testimony of the little girl and particularly the mother of this little girl in this situation,” strikingly similar to the trial court’s statement in the case at bar. The State argued in Morgan, as the State argues in the case at bar, that the victim’s testimony “was clear and convincing as well as corroborated, and that the question of the witness’ credibility was one for the trial court.” In affirming and holding that the appellate court properly reversed the defendant’s conviction, our supreme court stated, in language most applicable to the case at bar:

“Contrary to the State’s contention, the complainant’s testi mony was neither clear and convincing nor substantially corroborated, as required in cases of this nature. [Citations.]
* * *
While due weight must be given to the trier of fact as to the credibility of the witnesses, ‘it is our duty to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and create an abiding conviction that he is guilty of the crime charged.’ [Citations.]
The only corroborative evidence supporting the complainant’s testimony was that of her parents and the grandmother, neither of which constituted substantial corroboration. The parents’ testimony merely placed the defendant in their trailer home on March 14. Although this testimony constituted some corroboration, in People v. Kolden (1962), 25 Ill. 2d 327, [185 N.E.2d 170], *** this court held that merely placing the defendant in the house with the complainant was not, alone, sufficient corroboration to sustain a conviction where the complainant’s testimony was otherwise unconvincing.
* * *
While we are cognizant of the difficulties in adducing proof in cases of this type, this does not vitiate the traditional requirement of proof of guilt beyond a reasonable doubt. [Citations.]” (Emphasis added.) People v. Morgan (1977), 69 Ill. 2d 200, 206-208.

In People v. Nunes (1964), 30 Ill. 2d 143, 195 N.E.2d 706, the jury found the defendant guilty of taking indecent liberties with a 12-year-old girl. The defendant contended on review that the testimony of the victim and her 12-year-old girlfriend that the defendant prevailed upon the victim to sit on his lap, and thereafter put his arm around her, kissed and fondled her and induced her to touch his private parts was insufficient to establish his guilt beyond a reasonable doubt. Our supreme court agreed and, in reversing the conviction, held:

“It is axiomatic that a charge of indecent liberties is an accusation easily made, hard to be proved, and harder to be defended by the party accused. [Citations.] In such cases reviewing courts are especially charged with the duty of carefully examining the evidence, and while due weight must be given to the judgment of the jury as to the credibility of the witnesses, it is our duty to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and create an abiding conviction that he is guilty of the crime charged. In our opinion the testimony of the two girls was not sufficient to remove all reasonable doubt as to the defendant’s guilt.
* * *
It cannot be said in the face of the contradictions and the improbabilities in the testimony of the two girls that the evidence creates an abiding conviction of the defendant’s guilt.” (Emphasis added.) People v. Nunes (1964), 30 Ill. 2d 143, 146-47.

In People v. Kolden (1962), 25 Ill. 2d 327, 185 N.E.2d 170, as in the case at bar, the victim was nine years of age and the defendant was found guilty by the court of taking indecent liberties with a child. On review he contended for reversal that the evidence failed to establish his guilt beyond a reasonable doubt. In Kolden, the victim testified that the defendant told her to touch his private parts, but the conversation was interrupted when the defendant answered her brother’s knock at the bathroom door. The victim testified that later that day in the bedroom the defendant “put his finger in my private.” The defendant testified and denied the misconduct attributed to him. In reversing, our supreme court held:

“It is well settled in Illinois that where a conviction for taking indecent liberties with a child depends on the testimony of the prosecuting witness, and the defendant denies the charge, there must be substantial corroboration of her testimony, or the testimony must be otherwise clear and convincing. [Citations.]
* * *
We think it clear that in the absence of substantial corroboration, the testimony of this 9-year-old prosecutrix is not so clear and convincing as to sustain a conviction. The State does not deny the need for corroboration ***.
* * *
While we are cognizant of the difficulties in adducing proof in cases of this type, and the susceptibility of small children to confusion upon cross-examination, the very odium and prejudice arising from such a charge requires that the courts do not vitiate the traditional requirement of proof of guilt beyond a reasonable doubt. From the record before us we are convinced that the State has failed to sustain this burden.” (Emphasis added.) People v. Kolden (1962), 25 Ill. 2d 327, 329-30, 185 N.E.2d 170.

In the case at bar, the trial judge did not accommodate his finding with specific designations of the record which he found “amply supported]” the guilty finding, and my diligent search of the record fails to reveal it. In the case at bar not one iota of corroborative evidence of D.J.’s testimony was presented. In fact, in those instances in which corroborative evidence would have certainly occurred, no such corroborative evidence was presented or existed. The absence of such corroborative evidence creates a reasonable doubt of guilt. Moreover, the State’s evidence is so improbable, unsatisfactory and bizarre that it creates a reasonable doubt of guilt. Further, the defendant’s testimony that D.J. was angry with him is not only uncontradicted, but in fact it is corroborated by D.J.’s testimonial admission that he was angry with the defendant.

The act of attempted anal intercourse with D.J. purportedly occurred in D.J.’s open-door bedroom, within a few feet of his mother’s open-door bedroom. D.J. knew his mother was within easy hearing distance. Yet, there was no outcry by him to his ever-protective guardian. D.J. did not actually testify that the defendant held his hand over his mouth during the contended 15- or 20-minute effort, and his testimony of his inability to yell, scream or make a single outcry to his mother during the entire episode that he relates is unconvincing.

D.J. did not “promptly” tell “his mother of the defendant’s conduct” as the majority states. D.J.’s testimony was that after the purported anal intercourse attempt, he waited for the defendant to go to sleep. He was not asked, he did not testify, and the evidence does not reveal how long he ostensibly waited for the defendant to go to sleep.

D.J. testified that he went to the bathroom, after he waited for the defendant to go to sleep. There is not one scintilla of evidence in this record to reveal the location of the bathroom, with relation to D.J.’s bedroom or his mother’s bedroom or otherwise. Whether D.J. went away from, toward or by his mother to get to the bathroom from his bedroom is undisclosed. More importantly, there is no evidence of the length of time D.J. remained in the bathroom, for what reason he went there, or what he did while there.

The evidence is that D.J. went to his mother’s bedroom from the bathroom, and in response to several inquiries from his mother, he told her that the defendant had committed acts which constituted attempted anal intercourse. D.J. was not asked and did not testify to his physical or emotional state at that point. His mother testified, however, that D.J. was not crying and she did not know if he was in pain when he came in her bedroom. This testimony was elicited on cross-examination, and she was not otherwise asked nor did she otherwise testify to D.J.’s physical or emotional state.

D.J.’s testimony was that the defendant completely disrobed him. Yet, neither D.J. nor his mother was asked, nor did either testify and the record is completely silent on, whether D.J. was nude when he ostensibly reported the alleged incident to his mother. D.J. was not asked, he did not testify and the record is silent on whether D.J. remained nude or put on some clothing after the episode which he related and before he told his mother about it. Fleeing nude to his mother would have been at least corroborative of his having been disrobed.

D.J.’s testimony that the incident related by him took place in his bed, over a 15- to 20-minute interlude, during which he was unable to scream because the defendant had his hand over his mouth, coupled with the defendant’s unsuccessful efforts to insert his penis in D.J.’s anus, would indicate some degree of struggle in D.J.’s bed. Yet, there is not one descriptive testimonial word in this record of the condition of D.J.’s bed after this specious act. This, too, would have been corroborative evidence.

D.J. testified that the defendant was completely disrobed and was nude when he committed the unauthenticated acts D.J. attributes to him. Yet, D.J. was not asked and did not testify whether the defendant put on any clothing, underwear or sleeping apparel after the incident. Nor was D.J., his mother or the arresting officer asked and neither testified whether the defendant was nude when the officer awakened and arrested him. This, too, would have been corroborative of D.J.’s testimony.

D.J. was promptly examined by a physician. The medical examination would be expected to corroborate D.J.’s testimony of a 15- to 20-minute forcible attempt at anal intercourse with a “hard” penis. But it did not do so. The defense presented, by stipulation, the doctor’s examination of D.J., which was that D.J. had a “soft, flat rectal, no bruises, no lacerations.” Even a slight tenderness in D.J.’s rectal area seemingly would have been present to corroborate D.J.’s testimony, but no such evidence was presented. Thus, the testimony of the “forensic scientists” does not substantiate the trial judge’s guilty finding. Rather, it lends itself to the defendant’s innocence.

D.J.’s testimony is bizarre, improbable and unconvincing. The defendant’s testimony that D.J.’s mother asked him to “turn the kids in” on the other hand is uncontradicted. Moreover, it is nothing less than preposterous and unpersuasive that the defendant, with knowledge that D.J.’s mother and his own brother were in an adjoining, open-door room only a few feet away, forcibly disrobed D.J., then completely disrobed himself, got in D.J.’s bed and for 15 to 20 minutes forcibly but unsuccessfully attempted to insert his erected penis in this young lad’s anus, while successfully restraining him from making an outcry. Thereafter, according to the State, the defendant promptly got in his bed only a few feet from D.J.’s bed and there slept until the police arrived and arrested him.

In People v. Kepler (1966), 76 Ill. App. 2d 135, 221 N.E.2d 801, it was the bizarre testimony of the victim that the defendant forcibly and against her will had sex with her and thereafter drove her home that created a reasonable doubt of the defendant’s guilt. In reversing the rape conviction, the court held, in language most applicable to the case at bar:

“A reviewing court will not hesitate to reverse a conviction where, after a review of all the evidence, there exists a grave and substantial doubt as to the guilt of the defendant due to a lack of credible evidence or the existence of improbable or unsatisfactory evidence.” 76 Ill. App. 2d 135, 141, 221 N.E.2d 801.

In People v. Szybeko (1962), 24 Ill. 2d 335, 181 N.E.2d 176, it was, in part, the unique and unusual testimony of the sex victim that, after beating and raping her, the defendant drove her to the dormitory in which she resided which created a reasonable doubt of the defendant’s guilt. In Szybeko, as in the case at bar, the defendant and victim were acquaintances and the defendant denied commission of the sex act offense.

The victim in People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96, testified that the defendants, while armed with a pistol, robbed him of his money and thereafter drove him home for more money. In reversing the armed robbery conviction on this incredible evidence, our supreme court held:

“This resume of the testimony shows that the evidence relating to the material facts in issue was conflicting and cannot be reconciled. Under such circumstances it is the duty of a jury, or of a court sitting without a jury, to determine the credibility of the witnesses and the weight to be given their testimony, and on review, this court will not substitute its judgment for that of the jury or trial court. [Citations.] But it is always the duty of this court to examine the evidence in a criminal case, and if it is so improbable or unsatisfactory as to raise a serious doubt of defendant’s guilt the conviction will be reversed. [Citations.] A judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of the guilt of the defendant, and it is the insufficiency of the People’s evidence which creates such doubt. If a conviction is to be sustained, it must rest on the strength of the People’s case and not on the weakness of the defendant’s case. [Citations.] The foregoing principle of law is corollary of the presumption of innocence to which a defendant in a criminal case is entitled, and to the rule that the People have the burden of establishing the defendant’s guilt beyond a reasonable doubt.” (Emphasis added.) People v. Coulson (1958), 13 Ill. 2d 290, 295-96.

The State’s evidence in the case at bar is improbable and unsatisfactory. Further, the State’s evidence totally lacks corroboration, where cor-robative evidence would ordinarily exist and would be presented. The defendant denied commission of the criminal act attributed to him by the alleged victim. For these foregoing reasons, I submit, the defendant’s conviction and sentence should be reversed.

I dissent further from this court’s assessment of cost against the defendant “for the State’s defending this appeal” under People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194. No guidelines or notices thereof have been established by our supreme court or this court for the assessment of such cost against a defendant, and to perniciously allow or deny cost without such guidelines is arbitrary and impermissible in my judgment.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN CRUZ et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 82—2249, 82—2277, 82—2359 cons.
    Opinion filed December 7, 1984.

      John T. Theis, of Chicago, for appellant Juan Cruz.
    William A. Swano, of Chicago (Kathleen M. Pantle, of counsel), for appellant Darit Lindgren.
    Timothy P. O’Neill, of Oak Park, for appellant Patrick Staerzl.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Thomas D. Bilyk, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendants Juan Cruz, Darit Lindgren and Patrick Staerzl were convicted of manufacturing a controlled substance and possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1979, ch. 56V2, pars. 1401 and 1206(e)(1)), and each was sentenced to 30 days in jail and 30 months’ probation. The trial court acquitted a fourth defendant who was tried with defendants herein. Defendants maintain that the State failed to prove their guilt beyond a reasonable doubt; Staerzl and Lindgren also claim that the convictions violate the one-act one-crime principle. Because the appeal attacks the sufficiency of the evidence, we set out the facts at length.

As an overview, the bulk of trial testimony consisted of observations of one or more of the defendants on nine different days by five agents of the Drug Enforcement Administration (DEA). The surveillance, which we summarize chronologically rather than by agent, culminated in the execution of a search warrant at 1314 West Grand Avenue, Chicago, on January 23, 1981. Based on his participation in the search and analysis of items seized, a DEA chemist testified concerning the production, composition and quantity of various substances found there. In addition, the parties stipulated to a number of incidental facts.

On November 17, 1980, an agent went to the Wilkins-Anderson Company, where he wiped three beakers free from fingerprints, replaced them in a box and noted the design on the box. He set up surveillance outside; at 11:30 a.m., the agent saw Lindgren carry a similar box from Wilkins-Anderson and place it in the rear seat of a tan Cadillac. The agent followed Lindgren to the comer of Grand and Elizabeth, where Lindgren removed the box from the rear seat and carried it into a building on the northwest comer. The building, located at 1314 West Grand Avenue, appeared to be a garage, with large overhead doors on both Grand and Elizabeth, and a sign which read “Grand Auto Body.” The body shop abutted a residential building to the north at 510 Elizabeth.

The agent also observed Staerzl and Cruz that day. Staerzl made several trips between the body shop and a hotdog stand located directly across Elizabeth at 1248 West Grand, on the northeast corner of the intersection. The agent stated that Staerzl spent most of his time behind the counter of the hotdog stand, and appeared to be running it. Staerzl let himself into the body shop with a key, stayed an average of 10-15 minutes, and on one trip carried a white plastic pail from the hotdog stand to the body shop. The agent saw Cruz standing inside the body shop near the overhead door on Elizabeth Street when that door, apparently operated from inside, opened to admit a red Ford Bronco.

On January 12, 1981, an agent observed Lindgren as he pulled up to the body shop in a red Chevy pickup truck. Lindgren stopped briefly at the hotdog stand, then went into the body shop. Later Staerzl and Cruz arrived in a yellow Mercedes Benz, stopped briefly at the hotdog stand, then went into the residential building at 510 Elizabeth. Staerzl and Cruz left in the Mercedes; Lindgren was not seen again that day.

The next day, January 13, an agent saw Staerzl walk from 510 Elizabeth to the hotdog stand, then drive to the Injecto Molding Company. The agent noticed that Staerzl carried a bag when he left In-jecto at 4:30 p.m. The agent did not follow Staerzl, but he observed the same car parked at the body shop immediately upon his return. At about 5:15 p.m., Staerzl left the hotdog stand and went to the body shop for about 20 minutes.

On January 14, Staerzl was seen making several trips between 3 and 5 p.m., stopping for 15 to 20 minutes at the hotdog stand, the body shop, and 510 Elizabeth. At about 5 p.m., Lindgren joined Staerzl in the body shop, where they both stayed until about 6:30 p.m., except that Lindgren went to 510 Elizabeth for a few moments during that period. Lindgren left at about 6:30 p.m., and Staerzl at about 7:15 p.m.

On January 16, an agent drove slowly down Elizabeth Street, past the body shop’s open overhead door, and observed two hooded benches, glassware and apparatus. Lindgren was standing in the doorway. The agent saw Lindgren leave at 4, then saw Staerzl walk from the hotdog stand to the body shop at 4:20 p.m. Approximately 15 minutes later, the agent saw Lindgren and Staerzl exit the body shop, but the agent stated that he had not seen Lindgren return there after his 4 p.m. departure.

On January 19, an agent followed Lindgren to the Wilkins-Anderson Company. Lindgren went inside through the front door and emerged with a piece of paper, then went to the loading dock, where he picked up several boxes and placed them in his car. Another agent followed Lindgren back to the body shop. After he took the boxes into the body shop, Lindgren went to the hotdog stand and spoke with Staerzl. The two left the hotdog stand and conversed outside for several minutes. Lindgren then returned to the body shop, and Staerzl returned to the hotdog stand. Later, an agent followed Lindgren to 2930 North Sheridan Road.

On January 20, the Mercedes and Cadillac were parked at the hotdog stand when surveillance began at 10 a.m. Staerzl was seen just before noon, and Lindgren was seen at about 1 p.m. At 3:30 p.m., Cruz and Lindgren left the body shop and drove from the vicinity in a yellow Datsun 240Z. A few minutes later, Staerzl emerged from the body shop, stopped briefly at the hotdog stand, and drove off in the Mercedes. At approximately 4 p.m., the Mercedes, then the Datsun, returned; Cruz, Lindgren and Staerzl conversed in the parking lot for several minutes. After the three spent a few more minutes in the hotdog stand, Cruz and Lindgren went to the body shop. Lindgren left the area from 5 to 5:40 p.m. Sometime around 5:30 p.m., Staerzl stopped briefly at the body shop, then went to Cavello’s Lounge nearby.

At 6:30 that evening, an agent walked past the body shop. He noticed that the lights were on, heard a fan operating at the rear of the building, and smelled a chemical odor. The agent then followed Cruz from the body shop to the hotdog stand and smelled a similar chemical odor when he stood near Cruz. Cruz and Lindgren left the area at 8:15 p.m. The agent walked past the building again, noticed that the lights were off and heard no sound from the fan.

On January 22, the lights and fan were on until Cruz and Lind-gren left at 9 p.m.

On January 23, an agent observed Cruz as he parked the red Chevy pickup truck at the Curtis-Mattheson Scientific Company. Cruz went inside and came out with an employee pushing a cart laden with five metal cans. After loading the cans into the truck, Cruz drove away. The agent attempted to follow, but lost the truck; he next saw it at the body shop.

Meanwhile, other agents maintained surveillance in the vicinity of the body shop. Cruz pulled up to the building, then walked around the corner and out of view. Moments later, he came into view as the overhead door opened. When Cruz returned to the driver’s seat, the agents, with the help of the Chicago police, converged on the body shop and executed a search warrant.

Agents found two 10-foot workbenches with ventilation hoods mounted overhead; the hoods were connected, in turn, to a large ceiling fan. The agents recovered chemical glassware, vacuum pumps, infrared lamps, chemistry books, receipts for equipment and chemicals, and a laboratory notebook. In addition, a wide variety of substances was seized, including hundreds of pounds of powdered material, 55-gallon drums labeled as chemicals, bottled liquids, and beakers of refrigerated substances. The agent who had driven past the open overhead door one week earlier and observed the equipment inside at that time stated that he saw some of the same equipment during the search. The agent who had walked past the “body shop” three days before the search testified that the inside of the building had the same chemical odor as he had smelled outside.

Agents also discovered a large hole in the north wall of the 1314 Grand building which opened through a south wall into the 510 Elizabeth address and provided mutual access to the premises. Agents searched the 510 Elizabeth address, but the fruit of this search was suppressed as to Staerzl. A search of the premises at 2930 North Sheridan was also invalidated, and the evidence suppressed as to Lindgren. No issue is raised concerning the suppression of this evidence.

DEA chemist Dr. Sanford Angelos was stipulated to be an expert in his field, and testified that he was familiar with the processes for synthesizing methaqualone, and he had seen clandestine laboratories for the production of methaqualone. Based on his observations during the search of 1314 West Grand Avenue on January 23, 1981, Dr. Angelos opined that the laboratory was sufficient to produce metha-qualone. Angelos’ chemical analysis revealed that substances seized there contained between 700 and 1000 grams of methaqualone. He also examined the laboratory notebook, and determined that the substance seized, methaqualone, as well as some apparent constituent elements, was the result of processes detailed in the notebook. Dr. Ange-los estimated that the other “batches” described in the notebook produced an average of 800 grams of methaqualone each, for a total of six or seven kilograms. He also estimated that the raw materials on hand were sufficient to produce 220 kilos of methaqualone. At 300 milligrams per pill, he concluded that in excess of three million pills had been or could be made.

The parties stipulated that Staerzl paid the electric and gas bills for 1314 West Grand, and that the tax bill was sent to Staerzl’s mother-in-law. Staerzl owned the business license for the hotdog stand, which shared a telephone line with the body shop. Fingerprints lifted from one of the ventilation hoods matched Staerzl’s left index, middle and ring fingers. The parties also stipulated that the handwriting in the laboratory notebook was Lindgren’s, and that his signature appeared on certain receipts. Although vehicle registrations and receipts were admitted into evidence, the contents of the documents do not appear in the record. Surveillance photographs and a videotape of the search were also introduced into evidence.

The trial court found these defendants guilty, and sentenced each to 30 months’ probation, the first 30 days of which were to be served in the county jail. Defendants filed timely notices of appeal.

OPINION

Each defendant maintains that, as to him, the State produced insufficient evidence of manufacture, possession and intent to distribute. With respect to manufacture, Cruz argues that the evidence showed only his presence and failed to show any act resulting in the manufacture of a controlled substance. Lindgren argues that the evidence revealed only that he picked up boxes of equipment, wrote in a notebook, and associated with the other defendants, all legal activities which could give rise to no more than a suspicion of involvement in manufacture. Staerzl argues that no evidence was introduced of any act by him resulting in the manufacture of a controlled substance.

The Controlled Substance Act prohibits the knowing manufacture of a scheduled substance such as methaqualone. (Ill. Rev. Stat. 1979, ch. 56V2, pars. 1401 and 1206(e)(1).) “Manufacture” is broadly defined as:

“the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis and includes any packaging or repacking of the substance or labeling of its container ***.” (Ill. Rev. Stat. 1979, ch. 56V2, par. 1102(z).)

The thrust of defendants’ arguments is that the State presented no direct evidence that they did the acts proscribed.

It is not surprising that the State relied upon circumstantial rather than direct evidence. “Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the [trier of fact] may infer other connected facts which usually and reasonably follow according to the common experience of mankind.” (Devine v. Delano (1916), 272 Ill. 166, 179-80, 111 N.E. 742.) Echoing this general proposition, our supreme court has noted with respect to possession of illicit drugs:

“[W]here narcotics are found on premises under defendant’s control, it may be inferred that the defendant had both knowledge and control of the narcotics. This inference is based largely upon the nature of the commodity and the manner in which its illegal traffic is conducted. By law the use of narcotics, except for specified medicinal purposes, is rigidly condemned. Because of this illegitimate nature of narcotics, they are sold for exorbitant sums on the black market and are therefore of great value to the person possessing them. Furthermore, since their mere possession may subject such person to severe criminal consequences, the narcotics traffic is conducted with the utmost secrecy and care. Human experience teaches that narcotics are rarely, if ever, found unaccountably in a person’s living quarters.” (Emphasis added.) (People v. Nettles (1961), 23 Ill. 2d 306, 308, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939.)

No less than possession, the manufacture of controlled substances is an inherently surreptitious affair, and common sense must illuminate the dark. While our research has uncovered sparse authority in this jurisdiction concerning drug manufacture, none of it addressed to the sufficiency of the evidence, the settled principles for reviewing convictions based on circumstantial evidence dispose of defendants’ arguments here.

Proof beyond a reasonable doubt does not require the exclusion of every possible doubt, and a conviction may be sustained upon wholly circumstantial evidence, so long as the entire chain of circumstances leads to a reasonable and moral certainty that the accused committed the crime. (People v. Williams (1977), 66 Ill. 2d 478, 484-85, 363 N.E.2d 801, and authority cited therein.) Here, the evidence revealed an ongoing clandestine laboratory for the production of methaqualone at 1314 West Grand Avenue. The laboratory notebook seized during the search listed chemicals and equipment which, according to expert opinion, would aid the production of methaqualone, and set out procedures which, according to chemical analysis, actually produced the methaqualone and precursor substances found at the site. If the expert’s reading of the notebook was believed, as it apparently was, each of 12 batches took about two days to process.

Independently, the evidence indicated that Lindgren was at the site during normal working hours on seven days out of nine, and while he was there the lights and fan were on and a chemical odor was detected. He was seen picking up laboratory equipment and delivering it to the site. Lindgren stipulated that the notebook was in his handwriting. From this, the trier of fact was entitled to infer that Lindgren planned to acquire equipment and chemicals for the production of methaqualone, actually did acquire them, and spent his time at 1314 West Grand producing, preparing, compounding, synthesizing or packaging the methaqualone which was seized. Taken as a whole, all the evidence leads to a reasonable and moral certainty that Lindgren manufactured a controlled substance, and we affirm his conviction.

Having concluded that Lindgren’s conviction for manufacture was proved beyond a reasonable doubt, the convictions of Cruz and Staerzl must be sustained on a theory of accountability. A person is criminally accountable for the acts of another if “before or during the commission of an offense, and with the intent to promote or facilitate such commission, he [or she] solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c).) The evidence indicated that Cruz was inside the “body shop” during normal working hours when Lindgren delivered laboratory equipment on November 17, 1980, and the trier of fact could have inferred that Cruz operated the overhead door permitting Lindgren to enter. On several different days in January of 1981, Cruz was seen at 1314 Grand during normal working hours, spending hours at a time inside the building while the lights and fan were on. He gave off an odor like the chemicals used to manufacture methaqualone, and he was seen picking up and attempting to deliver chemicals useful in the manufacture of methaqualone. From this, the trier of fact could infer that Cruz intentionally aided, abetted, agreed or attempted to aid Lindgren in the manufacture of methaqualone. All the evidence leads to a reasonable and moral certainty that Cruz was accountable for the manufacture of a controlled substance, and we affirm his conviction.

Similarly, the evidence shows that Staerzl delivered a plastic pail to 1314 Grand on the same day that Lindgren delivered laboratory equipment there, and that Staerzl obtained equipment from the Injecto Molding Company. Staerzl made repeated trips to the “body shop” throughout the surveillance, and spent more than two hours there on January 14, most of the time with Lindgren. Staerzl had a key to the building, furnished utilities, and left his fingerprints on a ventilation hood over a bench of laboratory equipment. He leased the 510 Elizabeth premises, which were secretly connected to 1314 Grand, and ran the hotdog stand which shared a telephone line with the laboratory. The tax bill was sent to one of his relatives. From this, the trier of fact could infer that Staerzl intentionally aided in the planning and commission of the offense of manufacture. All the evidence leads to a reasonable and moral certainty that Staerzl was accountable for the manufacture of methaqualone, and we affirm his conviction.

Next, defendants argue that the State produced insufficient evidence of possession and intent to deliver. Each maintains that'the evidence failed to show such control over the premises as would permit an inference of possession. They argue further that because no evidence was introduced concerning the normal dosage of methaqualone, evidence of quantity could not give rise to an inference of intent to distribute. We believe defendant’s arguments are without merit.

A conviction for possession of a controlled substance will be sustained where the State establishes that the accused knew of the presence of the substance, and that the substance was in the immediate and exclusive control of the accused. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939.) Knowledge and control are findings of fact, and such “findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt.” (People v. Galloway (1963), 28 Ill. 2d 355, 358, 192 N.E.2d 370, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665; People v. Atencia (1983), 113 Ill. App. 3d 247, 250, 446 N.E.2d 1243, cert. denied (1983), 464 U.S. 917, 78 L. Ed. 2d 261, 104 S. Ct. 283.) Absent facts and circumstances which might create such a doubt, the fact that a controlled substance is found on premises under the control of the accused will, in and of itself, support a conviction for possession. People v. Nettles (1961), 23 Ill. 2d 306, 308-09, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939.

In People v. Fox (1962), 24 Ill. 2d 581, 182 N.E.2d 692, our supreme court defined constructive possession as that which exists without personal present dominion, and approved the idea that one who no longer has physical control may retain constructive possession, provided that he or she has had physical control, has not abandoned it, and no other person has acquired possession. (24 Ill. 2d 581, 585, 182 N.E.2d 692.) The court there found persuasive the fact that defendant “had the run of the apartment, even if he did not live there.” (24 Ill. 2d 581, 585, 182 N.E.2d 692.) The instant facts reveal that each of the defendants had the run of the premises in question. Lindgren and Cruz repeatedly let themselves and one another in, used the space and utilities for hours at a time, and closed it when they left. Although technical ownership apparently belonged to one of Staerzl’s relatives, Staerzl himself exercised all of the immediate pos-sessory incidents of ownership. The record is absolutely barren of the intimation that any other person exercised such control of the premises as would create a doubt concerning the guilt of these defendants.

Similarly, the State’s failure to introduce evidence of dosage was not fatal. Intent to deliver is necessarily proved by circumstantial evidence, and possession of a quantity of a controlled substance far in excess of that which could be intended for personal use will support an inference of intent to deliver. (People v. Kline (1976), 41 Ill. App. 3d 261, 266-67, 354 N.E.2d 46.) Expert testimony in this case revealed that at least six or seven kilograms of methaqualone had already been produced, and chemicals on hand would be sufficient to produce an additional 220 kilograms of the substance. Although our calculation at 300 milligrams per pill yields a total in excess of three-quarters of a million pills, the expert testified that three million pills could have been produced. In either case, the trier of fact could, by application of ordinary wisdom, conclude that the quantity exceeded personal need or desire, and infer that defendants intended to deliver some or all of these pills.

Finally, defendants contend that convictions for both manufacture and possession with intent to deliver violated the one-act one-crime principle. They argue that because the necessary end result of manufacture is possession of the substance, the acts are inseparable. The State argues that acts of manufacture and possession are distinct, thus multiple convictions and concurrent sentences were proper. We agree with the State.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, the supreme court explained that an “act is an overt or outward manifestation which will support a different offense.” (66 Ill. 2d 551, 566.) The court there held that a series of closely related acts could give rise to multiple offenses so long as they were not lesser included offenses, but that sentencing for such offenses should be concurrent. We believe that manufacture and possession in this case involved separate acts even though the circumstantial evidence proving those acts overlapped. Manufacture involved the purchase of chemicals and equipment and the synthesis of chemicals in order to bring methaqualone into existence. Acts of possession consisted of exercising control over the premises where the methaqualone was stored. While we acknowledge that these acts may be more difficult to distinguish on some facts (see, e.g., People v. Dunlap (1982), 110 Ill. App. 3d 738, 442 N.E.2d 1379), we do not see that they are necessarily indistinguishable, and we affirm multiple convictions as to the acts of these defendants.

We address one last issue which we raised at oral argument. Supreme Court Rule 607 provides that the sentencing judge may order a report of proceedings upon a defendant’s verified petition showing that he or she lacked financial means. (87 Ill. 2d R. 607(b).) Lindgren, in whose name this record was prepared, represented to the court through his attorney that he was indigent, and signed a verified petition stating that he lacked the means to hire an attorney or pay for the preparation of the record. However, after the public defender’s office submitted a brief which Lindgren considered to be inadequate, we granted his motion to substitute attorneys. It now appears that the record was furnished at the State’s expense despite the fact that all three defendants were represented by private counsel. In order to assure the integrity of our court system’s provision for appeals by poor persons, we remand this cause to the circuit court to determine whether Lindgren was in fact indigent at the time he executed the verified petition, and if he was not, to determine who should bear the cost of the record.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request for costs in the amount of $50 against each defendant.

For the foregoing reasons, the judgments of the circuit court are affirmed in part and remanded with directions.

Affirmed in part; remanded with directions.

MEJDA, P.J., and SULLIVAN, J., concur.


author: JUSTICE WHITE

text:
    MANOR HEALTHCARE CORP., d/b/a Americana Healthcare Center, Plaintiff-Appellant, v. NORTHWEST COMMUNITY HOSPITAL et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—3084
    Opinion filed November 28, 1984.

      Stanley A. Walton III and Albert Milstein, both of Winston & Strawn, and Andrew Tecson, both of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (William R. Wallen and Patricia Rosen, Assistant Attorneys General, of counsel), for appellees William Kempiners and Illinois Health Facilities Planning Board.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Donald L. Mrozek, Stephen R. Swofford, Michael R. Callahan, and John E. Steiner, Jr., of counsel), for other appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Manor Healthcare Corporation, plaintiff-appellant (Manor), appeals from an order of the circuit court of Cook County affirming the decision of the Illinois Health Facilities Planning Board, defendant-appellee (the Board), to grant a certificate of need to Central Health Care Corporation, defendant-appellee (Central), to construct a 200-bed nursing home in planning area 7-I.

On December 27, 1982, Central filed an application before the Board for a certificate of need to build a 200-bed skilled nursing facility adjacent to Northwest Community Hospital in Arlington Heights. The application was deemed complete on January 21, 1983. On March 31, 1983, the Board held a public hearing on the desirability of the proposed nursing facility. At the hearing and thereafter, Manor voiced objections to the grant of a certificate of need to Central. On June 2, 1983, the Board considered Central’s application for a certificate of need and took action indicating its intent to deny the application. The Board expressed concern about the proposed square footage in the private rooms and the possible use of empty rooms in Northwest Community Hospital. Subsequently, Central modified the plans for the nursing facility, and on August 23, 1983, the Board approved the application.

Central’s application for a certificate of need was also reviewed by the Cook-Du Page County Health Systems Agency, the health planning agency for area 7. The agency recommended that the Board approve Central’s application.

On August 11, 1983, the Board issued Central a permit for construction of the 200-bed nursing facility. On August 17, 1983, Manor requested that the Board reconsider its decision to approve Central’s application. The Board denied Manor’s request for reconsideration on the basis that “good cause does not exist.” Manor then filed a complaint for judicial review seeking, inter alia, stay of the Board’s decision and an injunction against further construction of the nursing facility. From the order of the circuit court affirming the decision of the Board, Manor appeals.

We first consider defendants’ contention that Manor lacks standing to seek judicial review of the Board’s decision to grant Central a certificate of need. Section 11 of the Illinois Health Facilities Planning Act (Planning Act) provides:

“Any person who is adversely affected by a final decision of the State Board may have such decision judicially reviewed.” (Ill. Rev. Stat. 1983, ch. HV-k, par. 1161.)

Prior to May 1982 the section read:

“An applicant or areawide health planning organization who has exhausted all available administrative remedies and who is aggrieved by a final decision in a contested case may have such decision judicially reviewed.” (Ill. Rev. Stat. 1981, ch. lll1^, par. 1161.)

The section was amended as part of an effort to bring the State of Illinois in compliance with new Federal rules and regulations regarding certificates of need. (House of Representatives, 82d General Assembly, April 22, 1982, at 165.) The pertinent Federal regulations provide:

“(14) Judicial review. Provision that any person adversely affected by a final decision of a State Agency with respect to a certificate of need or an application for an exemption may, within a reasonable period of time after the decision is made (and any administrative review of it completed) obtain judicial review of it in an appropriate State court.
* * *
(ii) For purposes of this paragraph, ‘person adversely affected’ shall include the State Agency, any person who meets the definition of ‘affected person’ in sec. 123.401, and any person who participated in the proceedings before the State Agency.” (42 C.F.R. sec. 123.410(aX14).)
“The term ‘affected persons’ includes, at a minimum, the applicant; the health systems agency for the health service area in which the proposed project is to be located; *** any person residing within the geographic area served or to be served by the applicant; *** health care facilities and health maintenance organizations (HMO’s) located in the health service area in which the project is proposed to be located which provide services similar to the services of the facility under review ***.” 42 C.F.R. sec. 123.401.

Manor owns and operates Americana Healthcare Center (Americana), a 151-bed nursing facility located in Arlington Heights. Americana provides services similar to the services Central intends to provide. We conclude that Manor will be adversely affected by construction of a 200-bed facility in the area. Accordingly, Manor has standing to seek judicial review of the decision of the Board to grant a certificate of need to Central.

We next consider Manor’s contention that the Board’s decision to grant Central a certificate of need was against the manifest weight of the evidence. Manor maintains that the bed-need figures for planning area 7-1 are five beds and therefore it was error for the Board to give Central a permit for the construction of a 200-bed facility.

A proposed project which involves establishment of a new category of service, establishment of beds, and/or a substantial change in the scope or functional operation of the facility or a substantial change in the number of beds within a facility, must be consistent with the bed need as determined by the Illinois Department of Public Health (Department of Health). (Illinois Health Facilities Planning Board Rule (Board Rule) 3B.07.C.01.) Moreover, where the bed-need figures as determined by the Department of Health (appendix A) indicate that there is a need for additional nursing care beds in the area, such needed beds must be added to existing facilities unless the need shown is 200 beds or more. Illinois Health Facilities Planning Board Rule 3B.09.C.02.

At the time Central’s application for a certificate of need was deemed complete, January 21, 1983, appendix A showed there was a need for 291 beds in planning area 7-1. Central’s application requested permission to build a 200-bed facility. Therefore, Central’s application met the bed-need criterion and was properly granted.

We are aware that in June 1983, two months before the Board approved Central’s application, appendix A was updated to show a need of five beds in planning area 7-1. However, Rule 3B.03.C.04 provides that “[i]f the bed need figures for a service or planning area (as shown in “Appendix A”) change during a project’s review because of updating the inventory, the figures which indicate the largest additional bed-need or smallest excess bed situation shall be used as the standard for review.” Therefore, the bed-need figure of 291 beds was properly used by the Board in granting Central the certificate of need.

Next, Manor questions both the validity of Board Rule 3B.03.C.04 and the standard of review applied by the trial court in evaluating the rule.

Manor contends that a distinction must be made between administrative rules based upon professional or technical expertise to which a review standard of arbitrary, unreasonable, or capricious would apply and rules involving no expertise to which an easier review standard would apply, to wit, the standard utilized by an appellate court reviewing any trial court decision. We find such a distinction to be impractical. A reviewing court faced with the bare text of an administrative rule is in an inadequate position to decide whether the rule is based upon professional or technical expertise. We refuse to adopt this bifurcated standard and choose instead to follow the established law of Illinois that administrative regulations will be set aside by a reviewing court only if they are found to be clearly arbitrary, capricious or unreasonable. (Begg v. Board of Fire & Police Commissioners (1984), 99 Ill. 2d 324, 331-32, 459 N.E.2d 925; Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 310, 319 N.E.2d 782.) Moreover,- administrative regulations, like statutes, are presumptively valid, and the one attacking such regulations has the burden of establishing their invalidity. Begg v. Board of Fire & Police Commissioners (1984), 99 Ill. 2d 324, 332; Midwest Petroleum Marketers Association v. City of Chicago (1980), 82 Ill. App. 3d 494, 500-01, 402 N.E.2d 709.

Board Rule 3B.03.C.04 provides that if the bed-need figures for a planning area change during a project’s review, the figures which indicate the largest additional bed-need situation shall be used as the standard for review. The rule assures the applicant that the bed-need figures considered by the Board in the reviewing process will not be lower than the bed-need figures as of the date his application is deemed complete. The result is that the applicant is encouraged to invest the necessary monies to plan a facility and prepare an application for a certificate of need. An applicant might be deterred from filing an application if the need figures were subject to constant change over the review period.

Additionally, Board Rule 3B.03.C.04 promotes timely and consistent review of the applications. An application is reviewed by several agencies over a périod of months. Were the bed-need figures allowed to change constantly over this period, the reviewing agencies would not have available the same data, and their recommendations would differ greatly.

Further, Board Rule 3B.03.C.04 insures that all applications are given the same consideration. An applicant will not suffer because the Board issues certificates of need to parties whose application's were deemed complete on the same date as his or thereafter.

We are of the opinion that Board Rule 3B.04.C.04 furthers the purpose of the Planning Act to establish an orderly and comprehensive health care delivery system which will guarantee the availability of quality health care to the general public. We conclude that the rule is neither arbitrary nor capricious.

Manor next contends that Board Rule 3B.03.C.04 was inapplicable because appendix A was not “updated” but merely corrected. Prior to June 1983, the Department of Health utilized countrywide census data to determine a bed need of 291 beds for planning area 7-I. Thereafter, the Department of Health utilized township census data to determine a bed need of five beds for the area. The change to township data did not represent correction of the data previously utilized and therefore a correction of the bed-need inventory based thereon. The countywide census data was not incorrect. It was merely less precise in reflecting the bed need for planning area 7-1. The change to township data represented a change of data base for the Department’s calculations. We believe that such a change constituted an “updating” of appendix A.

Since we find that appendix A was updated during the review period, we conclude that Board Rule 3B.03.C.04 was applicable and that the Board properly utilized the figure of 291 beds as the standard for review.

Lastly, Manor contends that appendix A is a rule which was not published in conformance with the Illinois Administrative Procedure Act (APA) (Ill. Rev. Stat. 1983, ch. 127, par. 1001 et seq.) and is therefore invalid. Manor concludes that the Board erred in utilizing the 291 bed-need figure contained in appendix A as a standard of review for Central’s application.

We are of the opinion that appendix A is not a rule -within the meaning of the APA. The APA defines a rule as “each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy ***.” (Ill. Rev. Stat. 1983, ch. 127, par. 1003.09.) Appendix A does not implement, apply, interpret, or prescribe law or policy in the area. Rather, appendix A is a statistic showing the bed-need inventory for the area. Appendix A merely applies formulae set forth in Board Rule 3B.09.B.03 to determine the bed-need figure for each planning area. We conclude that appendix A did not have to adopted in conformance with the APA.

For the aforementioned reasons the judgment of the circuit court of Cook County is affirmed.

RIZZI, P.J., and McGILLICUDDY, J„ concur.

      The State of Illinois is divided into 11 Health Service Areas, each headed by a health service agency. Cook and Du Page counties, excluding the city of Chicago, constitute Health Service Area 7. Health Service Area 7 is subdivided into planning areas. Planning area 7-1 consists of Elk Grove and Wheeling Townships. The nursing home which Central proposes to build will be located in planning area 7-1.

      Northwest Community Hospital is a subsidiary of Central and a defendant-appel-lee in the instant case. Northwest Community Hospital is a nonprofit corporation which owns and operates a general acute care, full service community hospital in Arlington Heights. The hospital does not maintain intermediate or long-term healthcare facilities. Patients requiring intermediate or long-term care are transferred to skilled nursing care or intermediate nursing care facilities in the area.

      The State of Illinois stood to lose $465 million over the course of four years for noncompliance with the Federal rules.

      The bed-need figures for the planning areas are set forth in the Inventory of Health Care Facilities and Need Determination by Planning Area. This document is commonly referred to as appendix A.

      Manor does not contend that Central’s application failed to meet any other review criterion.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT FLEAGLE, Defendant-Appellant.
    First District (3rd Division)
    No. 83—1539
    Opinion filed December 5, 1984.

      Steven Clark and Jeffrey Walker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Elizabeth Loredo Rivera, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Robert Fleagle was charged by indictment with rape, attempted rape, deviate sexual assault and attempted murder. The rape charge was dismissed by the State before trial. The attempted murder charge was dismissed by the trial court upon a motion for directed finding. After a bench trial, the trial judge made these findings:

“I find the defendant guilty of attempt rape and attempt deviate sexual assault. There will be a judgment on the attempt rape. Finding for no judgment on the second count.”

The order sentencing defendant to 30 months’ probation recites that the defendant had been adjudged guilty of both attempted rape and attempted deviate sexual assault. Defendant’s notice of appeal, however, is only from a conviction of attempted rape and the sentence of probation. The parties have addressed this record as an appeal from convictions of both attempted rape and attempted deviate sexual assault. We will do the same.

Defendant argues on appeal that: (1) he was not proved guilty beyond a reasonable doubt of attempted rape and attempted deviate sexual assault; (2) he was deprived of due process of law because the judge predetermined the case after the complaining witness’ direct testimony; (3) the trial court abused its discretion by excluding relevant testimony establishing that defendant did not have the physical strength to attack the complainant; and (4) he is deaf, and the trial court deprived him of his right to be present at his trial and of his right to confrontation of witnesses by making inadequate provisions for his comprehension of the proceedings against him.

Fleagle is a 32-year-old man who has been gradually losing his hearing after a bout of meningitis. Complainant testified that she thought that he was totally deaf. She was a friend of his wife’s and had known defendant for about a year prior to the incident in question. On June 11, 1982, at approximately 2 a.m., complainant returned home from Mugsy’s Pub and while fully clothed fell asleep on a couch. Sometime after 3 a.m. she was awakened by a knocking sound. She got up and saw defendant at the door. She admitted him to her apartment and wrote a note asking him why he was there. Defendant wrote back that the buses had stopped running to Summit, where he lived, and that he could not get a ride; he asked if he could stay at complainant’s apartment. Complainant consented, provided that he slept on the floor. She gave him some bedding and went back to sleep on the couch.

The next thing complainant remembered was being unable to breathe. She realized that she was being smothered by a pillow. She saw defendant standing over her with one leg on her stomach and the other on the floor. Defendant struggled with her and choked her until she became unconscious. When complainant awoke, she was on her back with her dress up and her panties gone. Defendant was undressed and was kneeling between her legs. At this point, defendant choked her again; he then pulled complainant toward his erect penis.

Complainant testified further that she struggled and screamed to her neighbor for help. She managed to escape and ran out of her apartment, screaming that she had been raped. This part of complainant’s testimony was corroborated by her neighbors and a police officer.

Subsequently, complainant was taken to the emergency room of McNeal Memorial Hospital and was treated by Nurse Doris Morris and Dr. Paul Volkman. Nurse Morris testified that complainant had scratch marks on her neck, her clothing was ripped and she was emotionally upset.

Fleagle testified that complainant was affectionate toward him and invited him to her house while they were in the Playground Lounge on the afternoon of June 10, 1982. This portion of Fleagle’s testimony was corroborated by two witnesses, a friend and the owner of the lounge. Fleagle stated that neither he nor complainant took off their clothes while he was at her home. He denied that he exposed his genitalia to complainant and denied that he attempted to have sexual relations with her. He testified that any sexual contact that took place that morning was instigated by complainant.

I

Defendant first argues that he was not proved guilty beyond a reasonable doubt of attempted rape and attempted deviate sexual assault, because the testimony of the complainant was inconsistent, incredible and impeached by other witnesses. We do not agree.

Defendant points to various inconsistencies in the complainant’s testimony, particularly in regard to where she was during the 12 hours before the incident; how many drinks she had while at the Playground Lounge; whether Ladawn Brown understood the complainant’s cries that she had been raped and whether she told the police that she was attacked in the bedroom or in the living room. Most of the inconsistencies refer to collateral matters relating to how the incident occurred and are not probative of whether the defendant committed the crimes. See People v. Triplett (1981), 99 Ill. App. 3d 1077, 1085-86, 425 N.E.2d 1236; People v. Tribett (1981), 98 Ill. App. 3d 663, 679, 424 N.E.2d 688.

The issue here is essentially a question of credibility, with the complaining witness relating one version of events and the defense witnesses portraying a completely different picture. Since the inconsistencies are minor, they affect only complainant’s credibility and the weight given her testimony. It is well settled that in a bench trial, the credibility of witnesses and the relative weight to be given their respective testimony are for the determination of the trier of fact. (People v. Williams (1976), 44 Ill. App. 3d 143, 358 N.E.2d 58.) Indeed, it is not the duty or privilege of a reviewing court to substitute its judgment as to the credibility of witnesses. That duty is for the trier of fact, who heard the evidence presented and observed the demeanor of the witnesses. (People v. Novotny (1969), 41 Ill. 2d 401, 244 N.E.2d 182.) A reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Watson (1982), 106 Ill. App. 3d 315, 436 N.E.2d 7.) In our view, the testimony was not so unreasonable or improbable as to raise a reasonable doubt of defendant’s guilt. For a reversal, defendant must show substantial evidence that will raise a reasonable doubt.

Defendant also contends that, although complainant’s testimony may be sufficient to support his conviction for attempted deviate sexual assault, it is not sufficient to support his conviction for attempted rape. He claims that there is no testimony indicating that he ever made an overt move toward the genital area of complainant. However, we point out that complainant awoke to find that her skirt and slip had been pulled to her waist, her blouse was open and defendant was nude, kneeling between her legs. This evidence was sufficient for the court to find that defendant had the intent to commit rape and had taken a substantial step toward the commission of that offense. (See Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a).) The fact that the assailant’s intent was not verbalized and that complainant successfully prevented consummation does not establish a lack of intent to rape. (People v. Shelby (1984), 123 Ill. App. 3d 153, 462 N.E.2d 761.) Accordingly, the trial court’s finding will be sustained.

Defendant’s reliance upon People v. Pitts (1980), 89 Ill. App. 3d 145, 411 N.E.2d 586, is misplaced. In Pitts, both defendant and complainant remained fully clothed while defendant obtained sexual satisfaction in a manner other than by intercourse. The court concluded that these circumstances did not warrant a conviction for the offense of attempted rape. Thus, Pitts is factually distinguishable from the instant case.

II

Next, we consider defendant’s argument that he was denied a fair and impartial trial. This is based upon two statements made by the trial judge which defendant claims indicate that the judge had prematurely found him guilty before the close of all the evidence. The first statement was made when defense counsel asked complainant, on cross-examination, whether she was aware that defendant and his wife were no longer living together. The State objected to this line of questioning, and, in a sidebar conference, defense counsel explained that he was trying to show the victim’s motivation to lie. He argued that she brought these false charges in order to preclude defendant from possibly receiving custody of his child in a pending custody dispute between defendant and his wife. The judge overruled the State’s objection and explained to defense counsel that:

“I’ll let you show it. If you can show motivation I will let you show it, but I don’t think that it can come out.
Unless she was a Sara Burnheart [sic] I think she was pretty upset when she was reliving the episode.”

Defendant argues that here “the trial judge believed that the credibility of the complaining witness was unshakable” and that the judge had already decided defendant’s guilt after complainant’s direct testimony. We disagree.

A trial judge’s remarks aimed at the clarification of the reasons for his rulings are legitimate and proper. (People v. Houston (1974), 21 Ill. App. 3d 209, 315 N.E.2d 192, cert. denied (1975), 420 U.S. 936, 43 L. Ed. 2d 412, 95 S. Ct. 1145.) A trial judge is also allowed to explain his rulings (People v. Morgan (1963), 28 Ill. 2d 55, 190 N.E.2d 755), and mere spontaneous remarks by a trial judge have been held nonprejudicial. People v. Freeman (1969), 113 Ill. App. 2d 7, 251 N.E.2d 310.

Here, the trial court’s statement “I will let you show it, but I don’t think it can come out” was merely an explanation of his reason for overruling the State’s objection to that line of questioning. This statement, the judge’s ruling and the surrounding text indicate that although the judge had doubts about the value of defense counsel’s question, he was willing to listen. This shows no premature finding of guilt.

The second incident occurred after the State rested its case in chief and arguments had been made on defendant’s motion for a directed finding, when the judge then explained his ruling as follows:

“On the attempted rape, the motion for directed verdict is denied.
On the attempted deviate sexual assault, motion for directed verdict is denied.
On the attempted murder, the motion is sustained.
I do not believe he tried to kill her. I do believe he tried to rape her and perform a deviate sexual act.”

This remark was an attempt by the trial judge to clarify and explain his midtrial ruling. (People v. Houston (1974), 21 Ill. App. 3d 209, 214, 315 N.E.2d 192; People v. Morgan (1963), 28 Ill. 2d 55, 63, 190 N.E.2d 755.) Following this, defendant had a full hearing, including the uninterrupted opportunity to present his entire case. We do not believe this statement shows that the trial judge prejudged the result.

In People v. Cannon (1974), 18 Ill. App. 3d 781, 791, 310 N.E.2d 673, after the State rested and before the defense had begun, the judge stated: “All right, there will be a finding of guilty *** wait a minute. Didn’t you proceed?” Based upon these remarks, the defendant in Cannon argued that he was denied a fair and impartial trial. The appellate court held that there could be no prejudice from that statement because “[t]he trial court immediately corrected, actually-interrupted, his own statement regarding a finding and then gave counsel for defendant a full, fair and complete opportunity to present evidence.” (18 Ill. App. 3d 781, 791.) In the present case, we believe that defendant was not prejudiced by the judge’s explanation of his finding, and that he was accorded a full, fair and complete opportunity to present evidence.

Defendant relies on People v. Diaz (1971), 1 Ill. App. 3d 988, 275 N.E.2d 210, where the trial judge pronounced defendant guilty three times before all the evidence was presented. The appellate court held that this rendered the trial which followed an empty formality and that defendant was denied a fair trial.

Defendant also cites People v. Ojeda (1969), 110 Ill. App. 2d 480, 249 N.E.2d 670. The trial judge in the instant case, unlike the judge in Ojeda, did not state that he believed complainant and would not believe anything defendant had to say. Nor did the judge pronounce defendant guilty before the defense had rested as did the judge in Diaz. In viewing the record as a whole, we believe that the trial judge merely explained his reason for denying defendant’s motion for a directed finding. (People v. Morgan (1963), 28 Ill. 2d 55, 190 N.E.2d 755.) Although his words may have been ill chosen, the trial judge merely expressed his opinion that the State had met its burden of proof by establishing a prima facie case for the court’s consideration. Accordingly, we conclude that defendant was not prematurely found guilty and thereby denied a fair trial.

Ill

Next, we consider defendant’s argument that the trial court improperly and prejudicially limited the scope of direct examination concerning defendant’s physical condition. Defendant contends that the trial court abused its discretion by excluding the testimony of Nancy Garmond and Mary Zehnder, because their testimony was relevant in establishing that defendant did not have the strength to attack the victim. From our reading of the record it is unclear whether the trial court excluded the testimony of Garmond and Zehnder.

However, assuming arguendo that the testimony was excluded, the judge did not abuse his discretion in granting the State’s motion to exclude the evidence. Defendant argues that these witnesses’ testimony was relevant to show that defendant did not have the strength to overpower complainant. We have consistently held that the trial court has wide discretion as to issues of relevancy and materiality. The judge may reject evidence which he determines to be of little probative value because of its remoteness, uncertainty, or conjectural nature. (People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14; People v. Radford (1967), 87 Ill. App. 2d 308, 232 N.E.2d 100.) This is a sufficient basis for the trial court’s decision, and if it appears on the record there is no abuse of discretion, the reviewing court will not disturb the lower court’s ruling. People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999.

Applying these principles, we hold that the exclusion of the testimony of witnesses, Garmond and Zehnder, reflected a proper exercise of judicial discretion. Evidence showing what occurred on July 8 when complainant, accompanied by a male companion, encountered defendant has at best little probative value as to what occurred on July 11 when defendant and complainant were alone. People v. Mosley (1979), 68 Ill. App. 3d 721, 386 N.E.2d 545.

Defendant, citing Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173, also claims that the court erroneously excluded Garmond’s and Zehnder’s testimony because it impeached complainant’s testimony that she had never been to defendant’s apartment nor had she seen him since the attack. We do not agree. Although testimony may be introduced to discredit a witness, this testimony must have the reasonable tendency to discredit the testimony of the witness on a material matter. A witness can never be impeached upon an immaterial matter. (People v. Boulahanis (1946), 394 Ill. 255, 68 N.E.2d 467.) The fact that complainant stated she had not seen defendant since the attack and the fact that Garmond and Zehnder testified otherwise are not contradictions of material matters bearing upon the trial issue as to whether defendant attempted to rape her on June 11, 1982. Even if the trial court erred in excluding their testimony, the error is harmless unless a reasonable doubt exists that the restriction could have contributed to defendant’s conviction. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340, 101 S. Ct. 1357.) Since we conclude that no reasonable doubt exists that the alleged exclusion of this testimony could have contributed to the conviction of defendant, any error resulting from this restriction was harmless.

IV

Lastly, defendant claims that the trial court violated his right to be present at his trial, as well as his right to confront witnesses. Specifically, defendant claims that he was denied a fair trial because, due to his deafness and due to the inadequate provisions made by the trial court for him, he was unable to understand the proceedings against him.

The record indicates that defendant was not totally deaf and could also read lips. Ruben Rodriguez, a close friend of defendant, testified that when he talked to defendant he would speak slowly and loudly and defendant would respond. Therefore, the trial court’s provisions for the use of a tape recorder and extra time to confer with defense counsel appear to be reasonable. The extra time allowed his attorney to repeat, explain and review the testimony with him in a louder voice and at a slower speed. The recorder enabled the attorney to play back the testimony to defendant at a louder volume. Defendant then would be able either to hear what his attorney told him, read his attorney’s lips, or hear the recorder. Under these circumstances, we believe defendant was provided “reasonable facilities” so as to comprehend the proceedings against him. People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, 263 N.E.2d 109.

Moreover, defendant and his counsel appear to have invited the alleged error of which he now complains. The record indicates that defense counsel had discussed defendant’s deafness with the judge in an earlier conversation. On the trial date, defense counsel stated to the judge that “we would like to use a recorder so that I could have an opportunity to refer to [defendant].” In addition, the judge afforded defendant and counsel extra time to confer between the direct and cross-examination of witnesses. Apparently, defendant agreed that these measures would be adequate. Throughout the trial, there was no hint that defendant was dissatisfied with the measures taken or could not understand the testimony. In light of this, it was entirely reasonable for the trial court to assume that the recorder and extra time were adequate. The court in People v. Riley (1964), 31 Ill. 2d 490, 496, 202 N.E.2d 531, reasoned that “[i]t is axiomatic that an accused cannot complain of error acquiesced in or invited by him.” 31 Ill. 2d 490, 496.

There was no reason to call an interpreter as defendant now argues. Moreover, defendant discontinued use of the recorder and extra time, after all but one of the State’s witnesses had testified. This was absolutely proper. People v. Lane (1980), 91 Ill. App. 3d 827, 414 N.E.2d 1249, and section 115 — 8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 8) provide that a defendant may waive his right to be present during his trial.

Under these circumstances, we find no error in the steps taken by the trial court to protect defendant’s right to confrontation of witnesses and to be present at trial.

For the aforementioned reasons the judgment of the trial court is affirmed.

Affirmed.

RIZZI, P.J., and McGILLICUDDY, J., concur.