{
  "id": 5667969,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY KINER, Defendant-Appellant",
  "name_abbreviation": "People v. Kiner",
  "decision_date": "1986-05-12",
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  "last_updated": "2023-07-14T15:11:23.440803+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY KINER, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nThe defendant, Gary Kiner, was convicted following a bench trial of two counts of aggravated incest and two counts of rape. He was sentenced to concurrent terms of six years\u2019 imprisonment on the rape convictions only. On appeal, the defendant asserts that he was not proved guilty beyond a reasonable doubt and that the trial court erred in refusing to allow him to be sentenced under the new statute. We affirm.\nThe victim was the defendant\u2019s 17-year-old daughter, Kimberly. At trial, she testified to a history of sexual contact with the defendant beginning when she was in the sixth grade. During these incidents of sexual contact, Kimberly would cry. Her father would then slap her on the face to make her stop crying.\nShe also testified regarding two specific incidents of sexual intercourse with the defendant which formed the basis for the rape and incest charges. On a morning in February 1983, the defendant awakened his daughter by fondling her breasts. He then told her to come downstairs. After a time, she went downstairs to the living room. She sat on a chair and watched television. Her father spread a quilt on the floor, grabbed her ankle, and pulled her out of her chair onto the quilt. The defendant sat on top of Kimberly. When she tried to roll away, the defendant pulled her back by her wrists. He continued holding her wrists as he removed her robe and nightgown. He then sat on her while he removed her underwear. The defendant placed her legs at an angle. Finally, despite Kimberly\u2019s efforts to resist, the defendant had intercourse with her.\nThe second instance of intercourse testified to by Kimberly occurred on an evening in April 1982. Kimberly was watching television in the living room at approximately 10:30 or 11 p.m. Kimberly\u2019s mother and siblings were sleeping upstairs while the defendant was asleep in the living room. The defendant awakened and spread a blanket on the floor. When Kimberly started to leave the room, the defendant gabbed her wrists and pulled her onto the blanket. The defendant held her wrists and sat on her as he removed her clothing. Despite Kimberly\u2019s efforts to resist, the defendant had intercourse with her.\nKimberly testified that her parents separated in March 1983, at which time she and her mother moved out of the family home. Kimberly informed her mother of the relationship with her father in August 1983.\nLa Salle County police officers Robert Scutt and Robert Newell testified for the State. At the time they arrested the defendant, the defendant acknowledged that he had attempted on two occasions to have sexual intercourse with Kimberly. He stated to the officers that on each occasion he penetrated her vagina approximately one-half inch but stopped when she complained that it hurt.\nThe defendant testified in his own behalf. The defendant recalled the two incidents testified to by Kimberly. Both incidents began with Kimberly and the defendant playfully wrestling. He acknowledged that he fondled and undressed Kimberly but asserted that he never had intercourse with her. He also testified that Kimberly consented to the fondling on those two occasions. The defendant denied telling La Salle County police officers that he penetrated Kimberly.\nPhyllis Kiner, Kimberly\u2019s mother and the defendant\u2019s ex-wife, testified for the defendant. In her testimony, the mother stated that when the family would watch television together in the evenings, Kimberly would sometimes be dressed in only a nightshirt and underpants. At times, Kimberly would wrestle -with the defendant or her younger brother.\nThe defendant argues on appeal that he was not proved guilty beyond a reasonable doubt because the State failed to prove that the sexual intercourse was by force and against Kimberly\u2019s will.\nAn accused commits rape when he has sexual intercourse with a woman \u201cby force and against her will.\u201d (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 1.) The testimony of the victim alone is sufficient to sustain a conviction for rape where her testimony is clear and convincing, even when her testimony is contradicted by the accused. (People v. Baseer (1980), 90 Ill. App. 3d 866, 414 N.E.2d 5.) The weighing of credibility of witnesses is a matter for the trier of fact. (People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.) The determination of the trier of fact will not be altered on review unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt as to the defendant\u2019s guilt. People v. Edmond (1979), 76 Ill. App. 3d 540, 395 N.E.2d 106.\nHaving reviewed the evidence in the cause at bar, we find that Kimberly\u2019s testimony was clear and consistent and did not raise a reasonable doubt as to the defendant\u2019s guilt. The inconsistencies in Kimberly\u2019s testimony were minor and did not go to the issues of force and consent in the two incidents for which the defendant was charged. Moreover, the defendant\u2019s testimony was impeached with the defendant\u2019s prior inconsistent statement. Accordingly, the defendant\u2019s conviction for rape is affirmed.\nThe defendant also argues on appeal that the trial court erred in refusing to allow him to be sentenced under the new sex-offense statute. (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12 \u2014 12 through 12\u2014 18.) At the time the defendant was charged, rape was a Class X felony. Under the new statute, the defendant\u2019s conduct would be charged as criminal sexual assault, a Class 1 felony. Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 13.\nThe defendant\u2019s argument was recently rejected by this court in People v. Flambeau (1985), 134 Ill. App. 3d 932, 481 N.E.2d 740. In Flambeau, we held that the defendant had no right to elect sentencing under the new statute (134 Ill. App. 3d 932, 934-35, 481 N.E.2d 740.) Based on the reasoning in Flambeau, we find that the trial court did not err in sentencing the defendant.\nFinally, the State has filed a motion, taken with the case, to assess the costs of representation by the office of the State Appellate Defender against the defendant for the reason that the defendant is not indigent.\nThe affidavit of assets and liabilities filed by the defendant shows assets of: (1) a 50% interest in an $80,000 home; (2) a 50% interest in 69 acres of land; (3) farm machinery; and (4) earnings of $778 per month. The defendant\u2019s liabilities include a loan on the farm machinery and a $30,000 debt to the ex-wife. The total amount of indebtedness is $99,414.73.\nGiven that the defendant\u2019s debts roughly equal his assets, we could find the defendant indigent. However, nothing on the defendant\u2019s affidavit indicates that his monthly income of $778 is in any way impaired or committed. Thus, based on the monthly income, we find that the defendant is not indigent.\nCounsel for the defendant was appointed under Supreme Court Rule 607 (87 Ill. 2d R. 607). Under section 113 \u2014 3.1 of the Code of Criminal Procedure of 1963, whenever counsel is appointed under Rule 607, the court may order the defendant to pay reimbursement for the cost of court-appointed counsel. (Ill. Rev. Stat. 1983, ch. 38, par. 113 \u2014 3.1.) Therefore, the State\u2019s motion for reimbursement in the sum of $2,500 is allowed.\nThe judgment of the circuit court of La Salle County is affirmed.\nAffirmed.\nHEIPLE, P.J., and SCOTT, J., concur.",
        "type": "majority",
        "author": "JUSTICE BARRY"
      }
    ],
    "attorneys": [
      "Robert Agostinelli and Kenneth D. Brown, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Gary L. Peterlin, State\u2019s Attorney, of Ottawa (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY KINER, Defendant-Appellant.\nThird District\nNo. 3\u201485\u20140063\nOpinion filed May 12, 1986.\nRobert Agostinelli and Kenneth D. Brown, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nGary L. Peterlin, State\u2019s Attorney, of Ottawa (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0366-01",
  "first_page_order": 388,
  "last_page_order": 392
}