{ "id": 8498170, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN M. PHILLIPS, Defendant-Appellant", "name_abbreviation": "People v. Phillips", "decision_date": "1989-03-10", "docket_number": "No. 1\u201486\u20142711", "first_page": "144", "last_page": "188", "citations": [ { "type": "official", "cite": "181 Ill. App. 3d 144" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "464 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156739 ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0023-01" ] }, { "cite": "155 N.E. 316", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "324 Ill. 363", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2444575 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill/324/0363-01" ] }, { "cite": "383 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1927, "pin_cites": [ { "page": "169" }, { "page": "169-70" } ], "opinion_index": 0 }, { "cite": "73 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441195 ], "weight": 2, "year": 1927, "pin_cites": [ { "page": "202" }, { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0192-01" ] }, { "cite": "273 N.E.2d 367", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911902 ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0078-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "276" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1979, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "499 N.E.2d 1335", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542288 ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0376-01" ] }, { "cite": "361 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2971787 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/1035-01" ] }, { "cite": "529 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 7", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3555030 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0007-01" ] }, { "cite": "480 N.E.2d 1373", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 865", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3637221 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0865-01" ] }, { "cite": "21 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "pin_cites": [ { "page": "257-58" } ], "opinion_index": 1 }, { "cite": "24 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2803467 ], "opinion_index": 1, "case_paths": [ "/ill-2d/24/0335-01" ] }, { "cite": "475 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1962, "opinion_index": 1 }, { "cite": "130 Ill. App. 3d 908", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493255 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/ill-app-3d/130/0908-01" ] }, { "cite": "495 N.E.2d 1201", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "145 Ill. App. 3d 482", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536303 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/145/0482-01" ] }, { "cite": "118 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188035 ], "opinion_index": 1, "case_paths": [ "/ill-2d/118/0407-01" ] }, { "cite": "117 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545360 ], "weight": 2, "pin_cites": [ { "page": "176-77" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/117/0170-01" ] }, { "cite": "115 Ill. 2d 238", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179231 ], "weight": 2, "pin_cites": [ { "page": "260" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/115/0238-01" ] }, { "cite": "116 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542977 ], "opinion_index": 1, "case_paths": [ "/ill-2d/116/0081-01" ] }, { "cite": "114 Ill. 2d 340", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542432 ], "weight": 2, "pin_cites": [ { "page": "349, 356" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/114/0340-01" ] }, { "cite": "362 U.S. 199", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162984 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/362/0199-01" ] }, { "cite": "204 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "214 Va. 697", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2120128 ], "opinion_index": 1, "case_paths": [ "/va/214/0697-01" ] }, { "cite": "437 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176664 ], "weight": 6, "pin_cites": [ { "page": "16-17" }, { "page": "13" }, { "page": "2150" }, { "page": "16-17" }, { "page": "13" }, { "page": "2150" } ], "opinion_index": 1, "case_paths": [ "/us/437/0001-01" ] }, { "cite": "88 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083469 ], "weight": 6, "pin_cites": [ { "page": "151" }, { "page": "151" }, { "page": "151" }, { "page": "151" }, { "page": "151" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/88/0129-01" ] }, { "cite": "180 Ill. 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App. 2d", "case_ids": [ 1589992 ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/113/0390-01" ] }, { "cite": "185 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 1 }, { "cite": "314 N.E.2d 651", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "656" } ], "opinion_index": 1 }, { "cite": "25 Ill. 2d 457", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5353570 ], "weight": 3, "pin_cites": [ { "page": "461" }, { "page": "461" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/25/0457-01" ] }, { "cite": "349 Ill. 147", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2604268 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill/349/0147-01" ] }, { "cite": "357 Ill. 592", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5282360 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill/357/0592-01" ] }, { "cite": "171 N.E.2d 612", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "21 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2733356 ], "weight": 4, "pin_cites": [ { "page": "257-58" }, { "page": "258" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/21/0252-01" ] }, { "cite": "244 Ill. 590", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3410725 ], "opinion_index": 1, "case_paths": [ "/ill/244/0590-01" ] }, { "cite": "99 S. Ct. 2788", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "221 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "76 Ill. App. 2d 135", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2575175 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill-app-2d/76/0135-01" ] }, { "cite": "257 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 1 }, { "cite": "121 Ill. App. 2d 403", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582657 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/ill-app-2d/121/0403-01" ] }, { "cite": "314 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 1 }, { "cite": "20 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344995, 5343956 ], "weight": 4, "year": 1970, "pin_cites": [ { "page": "847" }, { "page": "850" }, { "page": "851" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/20/0840-01", "/ill-app-3d/20/0840-02" ] }, { "cite": "443 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 1 }, { "cite": "110 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2995493 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ill-app-3d/110/1020-01" ] }, { "cite": "446 N.E.2d 591", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "113 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3624982 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/ill-app-3d/113/0001-01" ] }, { "cite": "497 N.E.2d 1261", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "147 Ill. App. 3d 302", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604084 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/ill-app-3d/147/0302-01" ] }, { "cite": "511 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "153 Ill. App. 3d 670", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3607352 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/153/0670-01" ] }, { "cite": "178 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2433020 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/ill-app-3d/178/0785-01" ] }, { "cite": "33 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2885631 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ill-2d/33/0190-01" ] }, { "cite": "48 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905296 ], "weight": 5, "year": 1965, "pin_cites": [ { "page": "98" }, { "page": "98" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/48/0091-01" ] }, { "cite": "338 Ill. 373", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5238384 ], "weight": 3, "pin_cites": [ { "page": "380" }, { "page": "380" }, { "page": "380" } ], "opinion_index": 1, "case_paths": [ "/ill/338/0373-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 28, "pin_cites": [ { "page": "317" }, { "page": "572" }, { "page": "2788" }, { "page": "317-18" }, { "page": "572-73" }, { "page": "321" }, { "page": "575" }, { "page": "2790" }, { "page": "319" }, { "page": "573" }, { "page": "2789" }, { "page": "319" }, { "page": "573" }, { "page": "309" }, { "page": "567" }, { "page": "312-13" }, { "page": "569" }, { "page": "318-19, 324, 326" }, { "page": "573, 577, 578" }, { "page": "573" }, { "page": "326-27" }, { "page": "578-79" }, { "page": "319" }, { "page": "573" }, { "page": "2789" }, { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 1, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "276" } ], "opinion_index": 1 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "weight": 7, "year": 1979, "pin_cites": [ { "page": "261" }, { "page": "261" }, { "page": "261" }, { "page": "261-62" }, { "page": "261" }, { "page": "261" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/106/0237-01" ] } ], "analysis": { "cardinality": 2563, "char_count": 106178, "ocr_confidence": 0.735, "pagerank": { "raw": 9.084852487167953e-08, "percentile": 0.5055702089195162 }, "sha256": "57581b70d128f506080a7b29e70efbcef559b8691c2fa16fc8d4731229ead495", "simhash": "1:be33f086ac33a21f", "word_count": 18269 }, "last_updated": "2023-07-14T20:30:31.344826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MURRAY, P.J., concurs." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN M. PHILLIPS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nDefendant, John M. Phillips, was convicted of aggravated kidnap-ing (Ill. Rev. Stat. 1985, ch. 38, par. 10 \u2014 2) and aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 14) following a bench trial and was sentenced to concurrent prison terms of six and four years, respectively.\nFor reasons set forth below, we affirm.\nThe following facts are undisputed. In the evening of June 23, 1985, Phillips met the complainant, M.B., and her friend, J.C., in Bootleggers, a singles\u2019 bar located near State and Division Streets in Chicago. After spending some time with Phillips, the two women accepted an invitation to go to his parked car for the purpose of indulging in illegal narcotics. M.B. got into the front passenger seat and J.C. got into the back seat behind Phillips. After lighting a marijuana cigarette, Phillips moved the car to a deserted area a short distance away.\nConflicting testimony as to subsequent events, as adduced at trial and pertinent to our disposition, is summarized below.\nM.B. testified that Phillips parked the car, opened the glove box, and retrieved a mirror and knife. When she asked the purpose of the knife, Phillips related that it was \u201cto cut up some cocaine.\u201d At that point, J.C. asked Phillips to take them back to their car. M.B. stated Phillips refused, but said he would \u201cin five minutes.\u201d M.B. stated that Phillips then put the knife to her left side. M.B. stated J.C. again asked Phillips to take them back to their car but he again refused. However, Phillips let J.C. out of the car. M.B. testified she attempted to grab hold of the knife but Phillips held both of her hands to her side. She stated Phillips still held the knife to her side and she was afraid.\nM.B. stated that when J.C. came around to the passenger side of the car, M.B. told her to get back into the car. At that point, M.B. stated, Phillips pushed the knife farther into her side and told J.C. to go away from the car so that he could \u201cmake out\u201d with M.B. M.B. testified she was still afraid.\nM.B. stated that when J.C. walked away, Phillips started the car and sped off. M.B. stated she begged Phillips to go back and get J.C. Phillips said they would go back and get her shortly.\nPhillips pulled the car into an alley. M.B. stated that he pointed the knife at her and told her, \u201cAs soon as you f\u2014 me and make me come, we will go back and get your girl friend.\u201d M.B. stated that Phillips removed her clothes, removed his own clothing, and forced her to submit to vaginal intercourse. During the act, she attempted to move her purse, which she was sitting on, because it was hurting her. M.B. stated Phillips again pulled out the knife and said, \u201cI will f\u2014 you with this knife if I have to. What are you doing? What are you going to get in your purse?\u201d She testified that Phillips also forced her to orally copulate with him.\nM.B. stated that when, at one point, she had to urinate, Phillips allowed her to do so at the side of the car, but kept his hand on her head to restrain her from leaving. When they got back in the car and Phillips tried to force M.B. to orally copulate with him again, she opened the car door and ran, naked, down the alley. M.B. stated that at the mouth of the alley she saw a car with headlights on and motioned the driver to stop. The car was a marked police squad car. M.B. pointed out defendant\u2019s car to the officers and got into the squad car. M.B. stated defendant started his car and sped out of the alley. The police gave chase and eventually captured Phillips.\nOn cross-examination, M.B. admitted that she and J.C. willingly accepted Phillips\u2019 initial invitation to go to his car to smoke marijuana. She also admitted that later, when Phillips put the knife to her side, she did not tell him to take it away, but asked only what the knife was for. M.B. stated that Phillips \u201cmust have been\u201d holding both of her hands with one of his hands while he restrained her because he kept the knife at her side. M.B. also stated that she recalled seeing the knife in Phillips\u2019 hand when he was removing her clothing.\nOn redirect examination, M.B. clarified that when J.C. got out of the car, M.B. reached her right hand over to get hold of the knife, but Phillips grabbed both of her hands.\nJ.C. testified on direct examination to the same facts leading up to her exit from Phillips\u2019 car. J.C. stated she eventually found her own car and, after unsuccessfully attempting to locate Phillips\u2019 car, she returned to Evanston where the women were staying.\nOn cross-examination, J.C. admitted that she was aided by a police officer in locating her car, but she did not express to him any concern for M.B.\nPhillips testified to a substantially different scenario. Phillips stated that after the women got into his car, which was parked on Rush Street approximately four blocks away from the intersection of State and Division Streets, he lit a marijuana cigarette and drove to a location under elevated train tracks near Wells Street. Phillips stated that, there, he began to \u201cchop up\u201d cocaine on a mirror with the knife. All three partook of the cocaine. Phillips stated that J.C. asked to get out of the car to be \u201csocially tactful\u201d because she saw him and M.B. \u201cmaking out\u201d in the front seat. Phillips stated that he did not restrain M.B. by holding her hands or by holding a knife to her side.\nPhillips testified he then moved the car to an alley located approximately five minutes away near Ashland Avenue and Augusta Boulevard. During the drive M.B. did not ask him to let her out of the car, but did express concern for J.C. While in the car in the alley, he and M.B. engaged in consensual foreplay and oral sex. Phillips stated they were in the alley for approximately 20 minutes. He stated that, there, M.B. again voiced concern for J.C. Phillips testified a car came down the alley and they could see lights. At that point, M.B. quickly exited the car. Phillips stated that when M.B. ran out of the car he panicked and drove down the alley. Although he noticed that it was a police squad car following him, he did not stop. He was eventually arrested after fleeing on foot.\nChicago police officer Wally Velez testified that at approximately 4 a.m. on the morning in question, he and his partner, Paul Brugger, were in a squad car on patrol, travelling eastbound on Augusta Boulevard. Velez testified that he observed M.B., naked, running toward the police car. The officers immediately pulled over to the side of the street and gave assistance. M.B. said she had been raped. Velez stated she was hysterical. When the officers heard the sound of screeching tires, and M.B. identified defendant\u2019s car as it came into view, the officers gave chase. The car stopped at a fence. Phillips, naked, exited, fleeing on foot. Velez found Phillips hiding under a porch a short distance away and arrested him. Velez testified that when he searched the car a short time later he found the knife in an open position.\nOpinion\nOn appeal, Phillips contends that the State failed to prove him guilty beyond a reasonable doubt. Phillips argues, generally, that M.B.\u2019s testimony was not sufficient to prove that her activity with Phillips was not consensual and that all of the circumstances preceding the sexual activity were consistent with a finding of consent.\nIt is the function of the trier of fact to weigh the evidence, resolve any apparent conflicts therein, and evaluate the credibility of the witnesses. (People v. Natty (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373.) In a criminal bench trial, these determinations are within the province of the trial judge. (People v. Clemons (1988), 175 Ill. App. 3d 7, 529 N.E.2d 577; People v. Givens (1977), 46 Ill. App. 3d 1035, 361 N.E.2d 671.) Furthermore, determination of the credibility and sufficiency of the evidence will not be reversed unless the evidence was so improbable as to create a reasonable doubt of guilt. (People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.) Thus, as the Illinois Supreme Court has noted, once the defendant has been found guilty in a criminal bench trial, the applicable standard of review is \u201c \u2018whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u2019 \u201d (Emphasis added.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Further, as in other criminal appeals, when reviewing a conviction for sexual assault, the testimony of a single witness, if it is positive and the witness credible, is sufficient to support the conviction, even though that testimony is contradicted by the accused. See People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367.\nThe trial judge below, in the exercise of proper duty, heard all of the witnesses and observed the evidence presented. The complainant testified that although she initially consented to enter Phillips\u2019 automobile, she was later restrained by Phillips against her will from leaving his car, was driven to an alley some distance away, and was there forced by Phillips to engage in sexual acts to which she did not consent. M.B.\u2019s initial consent to enter Phillips\u2019 car cannot reasonably extend to every subsequent event. Further, Phillips does not deny that he and complainant engaged in a sex act, but testified that complainant consented. At best, that evidence is merely conflicting. Resolution of the conflict was properly determined by the trial judge below. Reweighing of that evidence is outside the province of this court. Because the evidence here was only conflicting, and was otherwise sufficient to support the elements of the charges against Phillips, there exists no legally justifiable basis to disturb the trial court\u2019s judgment.\nPhillips also contends his conviction for aggravated criminal sexual assault should be reduced to criminal sexual assault, and the cause remanded for resentencing, because the State failed to prove beyond a reasonable doubt that he was armed with a dangerous weapon, or with an object M.B. reasonably believed to be a dangerous weapon, based on the character of the knife.\nThe offense of aggravated criminal sexual assault is committed when, during commission of a sexual assault, the accused \u201cdisplayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.\u201d (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 14.) In determining whether a particular instrument constitutes a dangerous weapon, the supreme court has held:\n\u201c \u2018Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.\u2019 \u201d (People v. Robinson (1978), 73 Ill. 2d 192, 202, 383 N.E.2d 164, 169, quoting People v. Dwyer (1927), 324 Ill. 363, 365, 155 N.E. 316, 317.)\nFor example, in Robinson the court concluded that a fingernail clipper containing a sharp, pointed fingernail file may constitute a dangerous weapon where testimony supports its use as such. Robinson, 73 Ill. 2d at 202, 383 N.E.2d at 169-70.\nThe knife that M.B. testified the defendant used in the sexual assault was admitted into evidence and was made a part of the record on appeal. It consists of two pieces: a two-inch sharpened metal blade with pointed tip attached to a plastic folding handle of the same approximate length, and a rectangular plastic piece into which the knife and handle, when folded together, conveniently fit.\nM.B. testified that when Phillips initially displayed the knife, ostensibly to \u201ccut up\u201d cocaine, she expressed concern and asked what the knife was for. She also testified that Phillips later held the knife to her side, exerting, at one point, additional pressure, to keep her from exiting his automobile. She testified that she was afraid. She also testified that defendant brandished the knife immediately preceding the act of vaginal intercourse and threatened her with it. He again displayed and threatened her with the knife when she reached for her purse during the assault. Although Phillips denies that he used the knife in such a manner, he does not dispute that he, indeed, displayed the knife.\nEven if the court accepted defendant\u2019s argument that the knife\u2019s characteristics do not classify it as a dangerous weapon per se, no basis exists to reduce defendant\u2019s conviction given the trial record, containing M.B.\u2019s testimony concerning the use of the instrument in the instant case. Again, the trial judge had before him the same physical evidence and was in the position to assess both M.B.\u2019s and Phillips\u2019 testimony on the basis of credibility regarding the use of the knife. After observing the knife and hearing the above testimony, the trial judge concluded that sufficient evidence existed to sustain a conviction for aggravated criminal sexual assault. M.B.\u2019s testimony alone provides a legally sufficient basis to support that conclusion and, therefore, in light of the proper scope of review to be exercised by the court on appeal, there exists no compelling reason to reduce defendant\u2019s conviction from aggravated criminal sexual assault to criminal sexual assault.\nLastly, in his opening brief Phillips challenges the constitutionality of the statute under which he was convicted of aggravated criminal sexual assault. Phillips also contends he was deprived of a fair trial through introduction into evidence of a pair of handcuffs recovered from his car and related comments made by the State during closing argument at the conclusion of trial. Phillips, however, failed to raise either issue in his written post-trial motion for a new trial and, consequently, has waived those issues for consideration on review. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.\nFor the above reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nMURRAY, P.J., concurs.", "type": "majority", "author": "JUSTICE LORENZ" }, { "text": "JUSTICE PINCHAM,\ndissenting:\nI dissent.\nI\nPREFACE\nIn reversing the conviction in People v. Phipps (1930), 338 Ill. 373, 380, almost 60 years ago, our supreme court held:\n\u201cIt was long ago stated by Lord Hale in regard to the charge of rape, \u2018that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused though never so innocent.\u2019 This statement has been approved by this court.\u201d (Emphasis added.)\nThis admonitory truism by Lord Hale approved by our supreme court is just as accurate and viable today as it was when it was first uttered by Lord Hale. The case at bar is an irrefutable example of Lord Hale\u2019s axiom. There was no rape in this case.\nThe evidence convincingly establishes that Mary Berg engaged in consensual sexual activity with the defendant John M. Phillips, Jr. In this case, rape was an accusation easily made, hard to be proved, \u201cand harder to be defended by the party accused though never so innocent.\u201d (Emphasis added.) 338 Ill. at 380.\nThere was no rape in this case. In this case, police officers came upon Mary Berg in a disgraceful and humiliating position, naked, engaging in voluntary sexual acts with her naked, newly met paramour, whom she knew by name, John M. Phillips, Jr., in his car, with his license plate with the letters, JMP JB, and which were his initials, affixed thereto, parked in an alley behind an occupied apartment building. In her frantic effort to avoid disgrace and regain her self-abandoned and forsaken honor, Mary Berg resorted to the ancient perfidious charges of rape and kidnapping, totaling 40 counts.\nFalse rape accusations, instigated because of embarrassment, humiliation, remorse, fear, anger, disgrace and revenge continue to denigrate womanhood, victimize unwary males and plague the criminal justice system. (People v. Taylor (1971), 48 Ill. 2d 91; People v. DeFrates (1965), 33 Ill. 2d 190; People v. Jackson (1989), 178 Ill. App. 3d 785; People v. Dick (1987), 153 Ill. App. 3d 670, 511 N.E.2d 432 (Pincham, J., dissenting); People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261; People v. Warren (1983), 113 Ill. App. 3d 1, 446 N.E.2d 591; People v. Rosario (1982), 110 Ill. App. 3d 1020, 443 N.E.2d 273; People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 276; People v. Taylor (1970), 121 Ill. App. 2d 403, 257 N.E.2d 524; People v. Kepler (1966), 76 Ill. App. 2d 135, 221 N.E.2d 801.) The judiciary should not succumb or become another prey to such odious and baseless charges. To condone and uphold such fabrications does not provide the community, and more particularly, does not afford honest women their much needed protection from bona fide thugs and criminals who prey upon them.\nThere was no rape in this case. The evidence utterly fails to establish beyond a reasonable doubt that there was a rape in this case. Quite the contrary! The evidence affirmatively establishes beyond a reasonable doubt that there was no rape in this case. The law mandates that a trial court or jury\u2019s guilty finding which is not based upon or established by proof beyond a reasonable doubt is not permanently or indelibly chiseled in granite. The law holds it to be our solemn duty to set aside such a finding on review. The Supreme Court aptly pointed out in Jackson v. Virginia (1979), 443 U.S. 307, 317, 61 L. Ed. 2d 560, 572, 99 S. Ct. 2781, 2788, that a \u201cproperly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury.\u201d (Emphasis added.) Moreover, the Supreme Court held in In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, for the first time, that the due process clause of the fourteenth amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. \u201cUnder Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.\u201d Jackson v. Virginia (1979), 443 U.S. 307, 317-18, 61 L. Ed. 2d 560, 572-73, 99 S. Ct. 2788.\nAn obviously innocent 33-year-old young man, who has no prior criminal record \u2014 not even an arrest \u2014 is the victim of a grave injustice in the justice system and languishes in jail because of an extremely indiscreet, but not illegal, sexual frolic in which he and his false accuser mutually agreed and participated. The law demands that we not close our eyes and blindly approve such an injustice. There was no rape in this case!\nII\nTHE LEGAL SCOPE OF REVIEW\nThroughout the history of this State, even before Phipps, and to the present, our supreme court has repeatedly, consistently, without deviation or variation, held \u201cthe rule in charges of rape\u201d to be:\n\u201c[W]hile in some cases the uncorroborated testimony of the prosecutrix may justify a conviction for rape, in order to do so the testimony must be most clear and convincing.\u201d People v. Phipps (1930), 338 Ill. 373, 380, citing People v. Freeman (1910), 244 Ill. 590.\nThe United States Supreme Court pointed out in Jackson v. Virginia (1979), 443 U.S. 307, 321, 61 L. Ed. 2d 560, 575, 99 S. Ct. 2781, 2790, that review \u201ccourts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact.\u201d\nOur supreme court has repeatedly, consistently, and without deviation held that the scope of review in a rape case, as expressed by it in People v. Qualls (1961), 21 Ill. 2d 252, 257-58, 171 N.E.2d 612, in reversing the rape conviction, to be as follows:\n\u201cReviewing courts are especially charged with the duty of carefully examining the evidence in rape cases. (People v. Kazmierczyk, 357 Ill. 592.) It is the further duty of a reviewing court, where a verdict is returned by a jury in a criminal case, not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant\u2019s guilt and to create an abiding conviction that he is guilty of the crime charged. People v. Abbate, 349 Ill. 147.\nWe are constrained to say, after a careful reading of the entire record, that the testimony of the prosecuting witness lacks verisimilitude.\u201d (Emphasis added.)\nIn reversing the rape conviction in People v. Faulisi (1962), 25 Ill. 2d 457, 461, the supreme court held the scope of review to be:\n\u201cReviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, (People v. Qualls, 21 Ill. 2d 252; People v. Kazmierczyk, 357 Ill. 592), and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant\u2019s guilt and to create an abiding conviction that he is guilty of the crime charged. People v. Qualls, 21 Ill. 2d 252; People v. Abbate, 349 Ill. 147.\u201d\nThe scope of review of a defendant\u2019s rape conviction following his bench trial was stated in People v. Anderson (1974), 20 Ill. App. 3d 840, 847, 314 N.E.2d 651, 656, to be:\n\u201cReviewing courts are especially charged with the duty of carefully examining the evidence in rape cases. Moreover, in such cases it is the duty of the reviewing court not only to carefully review the evidence, but to reverse the judgment if that evidence does not remove all reasonable doubt and create an abiding conviction that the defendant is guilty of the crime alleged. (People v. Faulisi (1962), 25 Ill. 2d 457, 185 N.E.2d 211; People v. Barfield (1969), 113 Ill. App. 2d 390, 251 N.E.2d 923.)\u201d\nThe court concluded in Anderson: \u201cAfter the careful scrutiny of the State\u2019s evidence which is required of a reviewing court, we hold that evidence insufficient to remove all reasonable doubt and to create an abiding conviction\u201d (20 Ill. App. 3d at 850) that there was a rape in the case, and reversed the conviction.\nThe supreme court reversed the rape conviction in People v. Taylor (1971), 48 Ill. 2d 91, and held the scope of review to be:\n\u201c[R]eviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant\u2019s guilt and to create an abiding conviction that he is guilty of the crime charged.\u201d 48 Ill. 2d at 98.\nThe trial court found the defendant guilty of rape in People v. Reese (1973), 14 Ill. App. 3d 1049, 1055, 303 N.E.2d 814, 819. This court reversed, and without remanding for a new trial, held:\n\u201cIt is true that in a bench trial, it is the responsibility of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony and, unless the evidence is so unsatisfactory as to raise a reasonable doubt of the defendant\u2019s guilt, the finding of the trial judge will not be disturbed. [Citations.]\nHowever, where the evidence of guilt is doubtful and uncertain, as we believe it to be here, and the explanation offered by defendant is positive ***, it then becomes our duty to reverse the conviction, as we do here. [Citation.]\u201d (Emphasis added.)\nThis court just recently held in People v. Allman (1989), 180 Ill. App. 3d 396, 401:\n\u201cIn those cases involving sex offenses, the reviewing court has a special duty to scrutinize the evidence closely.\u201d (Emphasis added.)\nIn spite of the foregoing unequivocal and unchallenged authorities governing the scope of appellate review, extending over a period exceeding a half century, in the case at bar the majority states:\n\u201c[O]nce the defendant has been found guilty in a criminal bench trial, the applicable standard of review is \u2018whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u2019 (Emphasis added.) People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.\u201d 181 Ill. App. 3d at 149.\nMy research does not reveal that our supreme court in Collins or in any other case expressly or by inference overruled the decades of uninterrupted and unchallenged authorities governing the scope of appellate review, as previously set forth, of a rape conviction, particularly where consent is the defense, and convincing evidence of consent is presented by both the prosecutor and the defendant. Compliance with the requirement of Collins of viewing the evidence in a light most favorable to the prosecution is not inconsistent or incompatible with a simultaneous compliance with the requirements that\n\u201creviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, and *** not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant\u2019s guilt and to create an abiding conviction that the defendant is guilty of the crime charged\u201d (Taylor, 48 Ill. 2d at 98)\nas mandated in Freeman, Phipps, Qualls, Abbate, Kazmierczyk, Faulisi, Taylor, Reese, Allman and a multitude of other authorities, likewise so holding. When such compliance is done, the conclusion is inescapable that there was no rape in this case.\nThe majority in the instant case relies on and cites Collins, which in turn relies on and cites Jackson v. Virginia as authority for the proposition that the applicable standard of review by a State appellate court of the rape conviction in this case is to view all the evidence in the light most favorable to the prosecution. A mere cursory examination, however, of Jackson v. Virginia clearly reveals that it does not so hold. Collins was not a rape or sex case or a criminal bench trial. It is apparent from an analysis of Jackson v. Virginia, Collins and Collins\u2019 progeny that our supreme court did not intend in Collins and Collins\u2019 progeny to overrule the decades of the foregoing unchallenged, Illinois law governing the scope of appellate review in rape and other sex cases. If our supreme court had intended to do so, seemingly it would have so stated.\nBefore reviewing Jackson v. Virginia, however, it is noteworthy that People v. Lewis (1981), 88 Ill. 2d 129, appears to be the first Illinois authority expressing that the evidence on review is to be \u201cviewed in a light most favorable to the Government.\u201d (88 Ill. 2d at 151.) Lewis was convicted by a jury of armed robbery, aggravated kidnapping and murder and sentenced to death. The testimony of an accomplice and other evidence were overwhelming of Lewis\u2019 guilt. Nevertheless, one of Lewis\u2019 contentions for reversal was that the evidence failed to prove his guilt beyond a reasonable doubt. In ruling adversely to the defendant\u2019s claim, the supreme court initially noted that \u201cit will not disturb the jury\u2019s verdict of guilty unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant\u2019s guilt.\u201d (88 Ill. 2d at 151.) The supreme court then held:\n\u201cThe United States Supreme Court has stated that the standard for reversing a jury\u2019s verdict on the ground of insufficient evidence is identical to the test of whether to submit the prosecution\u2019s case to the jury:\n\u2018The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury\u2019s finding the defendant guilty beyond a reasonable doubt. *** Obviously a federal appellate court applies no higher a standard [in determining whether the evidence was insufficient to sustain guilt, i.e., whether the prosecution failed to prove guilt beyond a reasonable doubt]; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury\u2019s decision.\u2019 Burks v. United States (1978), 437 U.S. 1, 16-17, 57 L. Ed. 2d 1, 13, 98 S. Ct. 2141, 2150.\u201d (Emphasis added.) 88 Ill. 2d at 151.\nIt is worthy of note, in my judgment, that in determining whether the evidence is insufficient to sustain a guilty finding, Lewis required that the verdict be sustained \u201cif there is substantial evidence viewed in the light most favorable to the Government, to uphold the jury\u2019s decision.\u201d (Emphasis added.) (88 Ill. 2d at 151.) It appears to me that such a requirement is appreciably different than is the requirement to uphold the guilty finding simply if \u201cafter viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements and the crime beyond a reasonable doubt,\u201d as pronounced in Collins and Jackson v. Virginia. (Collins, 106 Ill. 2d at 261; Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.) An analysis of Jackson v. Virginia reveals why.\nJackson v. Virginia involved an appreciably different proceeding and issue than the direct appellate review in a State court of a claim of deficiency of evidence to sustain a guilty finding in a State court of the commission of a State criminal offense. In Jackson v. Virginia, the Supreme Court opinion, authored by Justice Stewart, preliminarily states:\n\u201cThe question in this case is what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence.\u201d (Emphasis added.) Jackson, 443 U.S. at 309, 61 L. Ed. 2d at 567, 99 S. Ct. at 2783.\nThe Supreme Court\u2019s foregoing statement of the question presented in Jackson v. Virginia is more than adequate persuasion that the Supreme Court did not, indeed the Supreme Court could not, except for minimum Federal constitutional standards, prescribe the scope of appellate review in the State criminal proceedings. Jackson v. Virginia prescribed the standard of review to be applied in a Federal court in a habeas corpus proceeding in which a State-convicted defendant claims that the evidence is insufficient to sustain his conviction. But because the manner in which the scope of Federal habeas corpus review of an evidence deficiency claim of a State court conviction, adopted in Jackson v. Virginia, conversely parallels the scope of appellate review in Collins, further discussion of Jackson v. Virginia is enlightening and guiding.\nIn Jackson v. Virginia, unlike in Collins, the Supreme Court pointed out that the issue in the case was the standard to be applied in a Federal habeas corpus proceeding to review the sufficiency of the evidence in a State conviction. Conversely, as again hereinafter pointed out, our supreme court in Collins did not state that the scope of appellate review, or a change or an alteration thereof, was an issue on appeal for the court\u2019s determination.\nIn Jackson v. Virginia, the trial judge found the defendant guilty of first degree murder. The defendant admitted the killing, but contended that because he was intoxicated and because he shot the deceased in self-defense, the requisite premeditation was absent, which precluded a first degree murder guilty finding under Virginia law. There was no appeal as of right from a criminal conviction in Virginia (Saunders v. Reynolds (1974), 214 Va. 697, 204 S.E.2d 421), and the defendant\u2019s petition for a writ of error, under Virginia Code, section 19.2 \u2014 317, on the ground that the evidence was insufficient to support a finding of premeditation and first degree murder, was reviewed on the merits by the Virginia Supreme Court, which denied the petition, the effect of which was to affirm the conviction on the merits. Thereupon, the defendant contested the validity of his Virginia conviction in a habeas corpus proceeding in the Federal court. Applying the \u201cno evidence\u201d criteria of Thompson v. Louisville (1960), 362 U.S. 199, 4 L. Ed. 2d 654, 80 S. Ct. 624, the district court found the record devoid of evidence of premeditation and granted the writ. The court of appeals reversed, holding that from the evidence of the defendant\u2019s reloading of his gun after firing warning shots, that he had had time to do so, that the victim was then shot not once but twice and the defendant\u2019s state of intoxication, there was some evidence from which the trial court could find premeditation. The Supreme Court stated that it granted certiorari in Jackson v. Virginia to consider the defendant\u2019s claim that \u201ca federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.\u201d (Emphasis added.) (Jackson, 443 U.S. at 312-13, 61 L. Ed. 2d at 569, 99 S. Ct. at 2785.) The Supreme Court concluded that in a Federal habeas corpus proceeding to review the sufficiency of the evidence to sustain a State conviction under Federal constitutional due process:\n\u201c[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be *** to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. *** [Citation.] *** [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. *** Once a defendant has been found guilty of the crime charged, the factfinder\u2019s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.\n*** A review of the record in the light most favorable to the prosecution convinces us that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law.\n*** Under the standard established in this opinion as necessary to preserve the due process protection recognized in Win- ship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inference must presume\u2014 even if it does not affirmatively appear in the record \u2014 that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold that a rational trier of fact could reasonably have found that the petitioner committed murder in the first-degree under Virginia law.\nFor these reasons, the judgment of the Court of Appeals is affirmed.\u201d (Emphasis added.) 443 U.S. at 318-19, 324, 326, 61 L. Ed. 2d at 573, 577, 578, 99 S. Ct. at 2789, 2792, 2793.\nIf it is not clear from the foregoing statements of and quotes from Jackson v. Virginia that the Supreme Court of the United States did not therein alter or prescribe, or attempt to alter or prescribe, the scope of State appellate review of State criminal convictions to require State courts to \u201cview the evidence in the light most favorable to the prosecution,\u201d any remaining doubt is completely resolved by the opinion of Justice Stevens, with whom Chief Justice Burger and Justice Rehnquist joined, concurring in the judgment in Jackson v. Virginia. Justice Stevens aptly and eloquently pointed out:\n\u201cToday the Court creates a new rule of law \u2014 one that has never prevailed in our jurisprudence. According to the Court, the Constitution now prohibits the criminal conviction of any person \u2014 including, apparently, a person against whom the facts have already been found beyond a reasonable doubt by a jury, a trial judge, and one or more levels of state appellate judges\u2014 except upon proof sufficient to convince a federal judge that a \u2018rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u2019 Ante, at 319, 61 L. Ed. 2d at 573.\nThe adoption of this novel constitutional rule is not necessary to the decision of this case. Moreover, I believe it is an unwise act of lawmaking. *** [I]ts precipitous adoption will adversely affect the quality of justice administered by federal judges. ***\nIt is, of course, part of this Court\u2019s tradition that new rules of law emerge from the process of case-by-case adjudication of constitutional issues. Widespread concern that existing constitutional doctrine is unjust often provides the occasion, and is sometimes even relied upon as a justification, for the exercise of such lawmaking authority by the Court. Without entering the debate over the legitimacy of this justification for judicial action, it is at least certain that it should not be the basis for dramatic \u2014 indeed, for any \u2014 constitutional lawmaking efforts unless (1) those efforts are necessary to the decision of the case at hand and (2) powerful reasons favor a change in the law.\u201d (Emphasis in original.) 443 U.S. at 326-27, 61 L. Ed. 2d at 578-79, 99 S. Ct. at 2793 (Stevens, J., concurring, joined by Burger, C.J., and Rehnquist, J.).\nThus, the new constitutional rule announced in Jackson v. Virginia is that in a Federal habeas corpus proceeding in assessing a defendant\u2019s claim that the evidence in his State conviction was insufficient to sustain the guilty finding, the Federal judge is to view the evidence in a light most favorable to the prosecution. Jackson v. Virginia does not require a State court of review, when assessing a defendant\u2019s claim of insufficiency of the evidence to sustain a guilty finding of the commission of a State criminal offense, to view the evidence in a light most favorable to the prosecution.\nIn Collins, which, as stated, cites and relies on Jackson v. Virginia as its authority, the jury found the two defendants guilty of three brutal murders, and the defendants were sentenced to death. On appeal before the supreme court of Illinois, the defendants contended, inter alia, that the evidence did not establish their guilt beyond a reasonable doubt. Realistically, however, the evidence of their guilt was literally overwhelming. An accomplice testified that he accompanied the defendants with the bound murder victims from an apartment to the location a short distance away, where the three bound murder victims were repeatedly shot in their backs, the back of their necks and heads and in their faces and chests with shotgun blasts and pistols fired by the defendants. Other witnesses observed the defendants taking their bound victims from the apartment to the car in which the defendants transported them to the murder scene. Still other lay and expert witnesses put the murder weapons in the defendants\u2019 possession, as well as the rope with which the victims were bound. One defendant had three prior felony convictions, one for robbery and two for armed robbery, one of which was committed while he was on parole from the penitentiary, while the other defendant had 10 previous armed robbery convictions. That their defenses, presented by witnesses who were drug users and convicted felons, were permeated with fabrication and penury was clearly established by the prosecutor\u2019s cross-examination. With this factual background, it is beneficial to set forth our supreme court\u2019s complete discussion in Collins, in which it rejected the defendants\u2019 contention that the evidence failed to establish their guilt beyond a reasonable doubt and announced the principle of \u201cviewing the evidence in the light most favorable to the prosecution.\u201d Collins, 106 Ill. 2d at 261.\nThe supreme court\u2019s complete discussion in Collins on the issue is as follows:\n\u201cA criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant\u2019s guilt. [Citations.] Although the testimony of an accomplice is viewed with suspicion [citations], we have repeatedly held that it is sufficient to sustain a conviction if it satisfies the jury of the defendant\u2019s guilt beyond a reasonable doubt [citations]. When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, \u2018the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u2019 The court went on to note that, \u2018[ojnce a defendant has been found guilty of the crime charged, the factfinder\u2019s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.\u2019 *** [Citation.]\nIn view of these principles, we conclude that there is sufficient evidence to support the jury\u2019s verdict. Stated simply, the resolution of the defendants\u2019 guilt or innocence depended on the credibility of the witnesses and the weight given their testimony. It is well settled that these determinations are exclusively within the province of the jury. [Citations.] Similarly, it is for the jury to resolve any conflicts in the evidence. [Citations.] Here the jury was fully cognizant of the infirmities in [the accomplice] Nellum\u2019s testimony and was instructed that his testimony was to be viewed with suspicion. Nevertheless, the jury chose to believe Nellum over the defense witnesses, and after reviewing the record, we are not prepared to say that their conclusion was unreasonable.\u201d (Emphasis added.) People v. Collins (1985), 106 Ill. 2d 237, 261-62.\nAgain, it is worthy of note that our supreme court was obviously cognizant of its citation of, reliance on and quote in Lewis, the language of the United States Supreme Court in Burks v. United States (1978), 437 U.S. 1, 16-17, 57 L. Ed. 2d 1, 13, 98 S. Ct. 2141, 2150, that on direct appeal of a criminal conviction \u201ca federal appellate court *** must sustain the verdict if there is substantial evidence viewed in the light most favorable to the Government, to uphold the jury\u2019s decision.\u201d (Emphasis added.) (People v. Lewis (1981), 88 Ill. 2d 129, 151.) Our supreme court in Collins did not apply or adopt the aforestated Lewis direct appeal review criteria. Instead, our supreme court in Collins adopted the indirect Federal habeas corpus appellate review of a deficiency of evidence claim of a State conviction criterion, pronounced in Jackson v. Virginia, i.e., \u201cthe relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d (Collins, 106 Ill. 2d at 261.) Having recognized this distinction between Lewis-Burks and Jackson v. Virginia, and having adopted the former in Collins, it appears to me that had our supreme court also intended to overrule the foregoing authorities governing the scope of review in alleged rape-consent and other sex cases, it would have said so. Obviously, our supreme court, in Collins, was cognizant of its prior decisions on the scope of appellate review in alleged rape-consent and other sex cases. Apparently the court concluded that such scope was compatible and consistent with its newly announced mandate in appellate review to consider the evidence in a light most favorable to the prosecution, as pronounced in Collins.\nAfter Collins, the supreme court of Illinois decided People v. Linscott (1986), 114 Ill. 2d 340, in which the defendant was charged with murder and rape but the jury found him guilty only of the murder and not guilty of the rape. The sole issue presented on review was whether the evidence proved the defendant guilty of murder beyond a reasonable doubt. The supreme court cited Collins and the aforestated quote from Jackson v. Virginia, \u201cthe verdict will not be disturbed unless the evidence, viewed in the light most favorable to the prosecution\u201d (114 Ill. 2d at 348), and affirmed. Justices Clark and Simon dissented in Linscott, the former stating, \u201cIn my opinion the majority commits two errors. It applies the wrong standard of review, and it finds the evidence sufficient to sustain a conviction based on a mere suspicion of guilt. First, the majority fails to distinguish between appellate review of convictions based upon direct evidence and appellate review of convictions resting wholly upon circumstantial evidence. *** Second, using the proper standard, the evidence adduced here does not exclude a reasonable hypothesis of innocence.\u201d (People v. Linscott (1986), 114 Ill. 2d 340, 349, 356 (Clark, J., dissenting).) The supreme court in Linscott again did not overrule its foregoing series of authorities governing the scope of appellate review in sex cases.\nPeople v. Byron (1987), 116 Ill. 2d 81, is another conviction for murder, armed robbery and home invasion in which the evidence of the defendant\u2019s guilt was literally overwhelming. Nevertheless, the defendant argued that the evidence failed to establish his guilt beyond a reasonable doubt, which argument the supreme court rejected, citing Collins and quoting the exact language herein from Collins. Again, in Byron the supreme court made no mention of its multitude of prior decisions and holdings that in cases involving sex offenses the reviewing court has a special duty to scrutinize the evidence closely and to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt and to create an abiding conviction that the defendant is guilty of the crime charged.\nIn People v. Sanchez (1986), 115 Ill. 2d 238, which followed Byron, the defendant was found guilty by a jury of murder, aggravated kidnapping, deviate sexual assault, rape and attempted murder and sentenced to death. Peters, an accomplice, testified as a State\u2019s witness. His testimony, coupled with the testimony of a surviving shooting victim who also identified Sanchez as the assailant, and other evidence of defendant\u2019s guilt, the defendant contended, failed to prove defendant\u2019s guilt beyond a reasonable doubt, principally of the murders. The supreme court summarily treated the evidence regarding the offenses, pointed out that the testimony of an accomplice may be sufficient to convict and stated that, \u201cA conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of guilt.\u201d (People v. Sanchez (1986), 115 Ill. 2d 238, 260.) The supreme court in Sanchez also cited Jackson v. Virginia for the proposition that on review of an insufficiency of evidence claim the evidence must be considered in a light most favorable to the prosecution. But again, the supreme court did not hold in Sanchez that its many prior holdings governing the scope of review of the sufficiency of the evidence in alleged rape-consent and other sex cases were overruled, were no longer applicable, or were to be disregarded.\nFollowing Sanchez, the supreme court decided People v. Brackett (1987), 117 Ill. 2d 170. Brackett was originally charged with rape, deviate sexual assault and aggravated battery. Subsequently the victim died, whereupon Brackett was additionally charged with murder. The murder charge was severed and, after a bench trial, the defendant was found guilty of rape and aggravated battery. At his second trial, the trial court found him guilty of the murder. The appellate court affirmed the murder conviction and vacated the rape and aggravated battery convictions. The supreme court granted leave to appeal and the defendant urged that the evidence was insufficient to prove causation, i.e., a criminal agency caused the victim\u2019s death. The supreme court rejected the defendant\u2019s contention, pointed out that the trial judge found the evidence of causation to be sufficient and that the appellate court affirmed the trial court\u2019s ruling, and concluded:\n\u201cWe have held that when presented with a challenge to the sufficiency of the evidence, ***. [Citation.] *** \u2018the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u2019 (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) *** and we will not disturb this verdict unless this evidence is so unreasonable, improbable and unsatisfactory as to leave a reasonable doubt as to defendant\u2019s guilt [citation].\u201d (Emphasis added.) People v. Brackett (1987), 117 Ill. 2d 170, 176-77.\nBrackett did not disturb the aforementioned decision of our supreme court on appellate review of an evidence deficiency claim in an alleged rape-consent or other sex offenses.\nIn People v. Williams (1987), 118 Ill. 2d 407, a jury found the defendant guilty of rape and armed robbery. Before the appellate court, the defendant contended that his identification as the assailant by the victim was unreliable and fatally flawed and that the evidence was insufficient to establish his guilt of robbery beyond a reasonable doubt. The appellate court affirmed the rape conviction and reversed the armed robbery conviction without any reference to the Collins decision. The appellate court also reversed the rape sentence and remanded for re-sentencing on the rape conviction. People v. Williams (1986), 145 Ill. App. 3d 482, 495 N.E.2d 1201. The supreme court granted the State\u2019s petition for leave to appeal in Williams, and without any reference to Collins regarding the rape conviction, and only referring to Collins regarding the robbery conviction, the supreme court affirmed both the robbery and rape convictions.\nNeither the United States Supreme Court nor our supreme court discussed in any of the aforenamed authorities whether the presumption of innocence or constitutional due process is adversely impacted upon by a judicial requirement, on a defendant\u2019s claim that the evidence is insufficient to sustain a guilty finding, that ALL the evidence MUST be viewed in a light most favorable to the prosecution. Whether the legislature or the supreme court is the proper forum for eliminating or altering the scope of appellate review need not be here discussed because the foregoing authorities and my further research do not indicate that the supreme court has done so. Ordinarily, elimination or alteration of rules of law, embodied in decades of long uninterrupted and indeed unchallenged case authorities, is not accomplished in a silent surreptitious manner, without notice to the bench, bar and public, and in the absence of briefing, argument and an authoritative opinion discussion on the subject by the court. Rather, the converse is true. Moreover, it is the duty of a court to rationalize and compatibly apply different rules of law and give each rule full force and effect whenever possible. It is therefore patently clear to me that our supreme court in Collins and Collins\u2019 progeny did not intend to overrule and eliminate Phipps and Phipps\u2019 progeny. The foregoing legal appellate principles pronounced in Phipps and Phipps\u2019 progeny are compatible and reconcilable with the foregoing legal appellate principles pronounced in Collins and Collins\u2019 progeny.\nThus, a careful consideration of the evidence in the case at bar, in a light most favorable to the prosecution, does not remove all reasonable doubt of the defendant\u2019s guilt and create an abiding conviction that he is guilty of the crimes charged. Moreover, after carefully reviewing the evidence in the case at bar, and viewing it in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt, and the evidence is so unreasonable, improbable and unsatisfactory as to leave a reasonable doubt as to the defendant\u2019s guilt.\nHH t \u2014 I\nJULIE CHISHOLM\u2019S, THE ALLEGED VICTIM MARY BERG\u2019S AND THE DEFENDANT JOHN M. PHILLIPS, JR.\u2019S DRINKING AND DANCING FROLICS\nThe majority\u2019s contorted diminution of the evidence, apparently inspired by its zeal for brevity, ignores pertinent facts, erroneously transforms and distorts others and corrupts rational conclusions and impressions from the facts presented. Thus, whatever concern I may have had for brevity is necessarily abandoned.\nMindful of the mandates and directives of the foregoing authorities, I carefully review in the light most favorable to the prosecution and examine the evidence in the case at bar aware that the complainant, Mary Berg, contended that the sex acts were with force and against her will, and mindful of the defendant John M. Phillips\u2019 contrary contention that Mary Berg, while on a frolic, consented and volunteered to the sex acts, that there was no force, that the sex acts were not against Mary Berg\u2019s will and that her false rape accusation was instigated because of and to camouflage her humiliation and disgrace when the police unexpectedly came upon her and Phillips, both nude, engaged in sexual activity in Phillips\u2019 car.\nMary Berg testified that she was 26 years old and that she graduated from nursing school on June 21, 1985. On the following day, to celebrate her graduation, she and her girl friend of 20 years, with whom she grew up and attended school in Detroit, Julie Chisholm, also age 26 and also a registered nurse, drove Julie\u2019s car from their home in Wan wick, Michigan, to the Chicago area. They stopped at Berg\u2019s brother\u2019s home in Evanston and that night they drove to the Rush Street nightclub area in Chicago. On the following night, Sunday, June 23, 1985, about 11:30 p.m., Mary Berg and Julie Chisholm again drove, in Julie\u2019s car, from Evanston back to the Rush Street nightclub area in Chicago, where, Julie testified, she knew that young singles congregated. They went to a bar and drank alcoholic beverages. Mary testified that she had a Black Russian and Julie testified that she had a beer. They remained in that bar about a half hour, departed about 12:30 a.m. the morning of June 24 and went to another bar in the vicinity called Bootleggers.\nThey sat in the bar in Bootleggers, at which they observed the defendant, John M. Phillips, Jr., sitting. There was a dance floor in the back of the bar and music was playing. Phillips commenced a conversation with Mary and Julie, asking them about their hometowns. Mary Berg even testified (on cross-examination) that the defendant told them that his name was John Phillips, which is in fact the defendant\u2019s name.\nPhillips testified that he had been in the bar about an hour when he observed Mary Berg and Julie Chisholm stagger through the door. He could tell that they had been drinking. Berg and Chisholm sat at the bar and he struck up a conversation with them. Phillips told them who he was, and gave them his correct name of John M. Phillips, and Mary Berg and Julie Chisholm told him who they were and that they were from Michigan. Phillips told Mary and Julie that he had lived in Saginaw, where he had gone to school, that he too had an extensive nursing background and that he rehabilitated and refurbished buildings and did dry wall construction for his livelihood. Phillips related that he bought Mary and Julie a drink, that there were two drinks for one that night, they traded drinks back and forth and that he danced with Mary and Julie.\nMary,' Julie and Phillips testified that Phillips danced with both Mary and Julie. Mary also testified that two drinks were being sold for the price of one and that she had a glass and a half of wine and a Stinger. Julie related that she had two beers. Mary and Julie stated that there was a large video screen in the bar, on which they watched sailing and skiing, and with the music playing, the place was pretty loud. They continued talking and dancing with Phillips and Mary related that she was having a good time. Phillips testified that Mary was the one in whom he was interested and that he was \u201chitting on Mary at that time.\" (Emphasis added.) Mary and Julie stated that they remained in the Bootleggers bar for about an hour or an hour and a half and that they, with Phillips, left Bootleggers and went to a third bar. Neither Mary Berg nor Julie Chisholm remembered the name of this third bar but they both estimated that the three of them were there about 20 minutes, during which they ordered more drinks.\n\nTHE \u201cKNIFE\u201d\nThe \u201cknife\u201d was adequate to cut up cocaine, for which purpose Julie and the defendant stated it was used. To anyone observing the fragile, delicate and meager size of the \u201cknife,\u201d it is glaringly apparent that the \u201cknife\u201d was inadequate to be used as a weapon of force or as a threat for rape. Mary\u2019s testimony, as hereinafter set forth, clearly established such.\nAlthough Julie testified that she heard Mary ask Phillips, \u201cWhat\u2019s the knife for?\u201d Julie was not asked and she did not testify whether she heard Phillips\u2019 response, which according to Mary was \u201c[T]o cut up some cocaine.\u201d\nAgain, I note that Phillips testified he used the knife to chop up the cocaine, while Mary held the mirror and that the three of them consumed the drug. Phillips further stated that when he was finished with the knife and cocaine he put the knife on the floor under the seat.\nJulie testified that she never saw the \u201cknife,\u201d but from her testimony and conduct upon alighting and departing from Phillips\u2019 car, it is patently apparent that she did not in any way perceive that Mary was in any danger with Phillips. In fact, Julie testified that when she got out of the car, Phillips told her \u201che wanted to be with Mary for 15 minutes to make out,\u201d that she then asked Mary for a cigarette and when Mary did not give her one, Julie said, \u201cI was going to go back to the car myself.\u201d (Emphasis added.) En route to her car, Julie testified that she flagged down a police officer, to whom she never mentioned that Mary was in any danger. In fact, Julie never mentioned Mary at all to the officer.\nThe \u201cknife\u201d is contained in the record on appeal before us, but before I herein endeavor to verbally describe it, I initially set forth its following description as related by the defense attorney in the trial court:\n\u201cYour Honor, this is the kind of utensil that you use to clean your fingernails with. I would assume Judge, without having a ruler in my hand that the blade on this plastic knife is no more than two inches in length; no more at all. This is not the kind of weapon if you will, that someone carries with them if they think that what they\u2019re going to do with this is force someone against their will and comply with their wishes. You would break this thing. I\u2019m sure I could do it very easily *** with a minimal amount of force. That\u2019s a plastic handle, the width of which the blade I would make to be between a quarter of an inch or a half inch. That\u2019s not the weapon used by a person who intends to persuade people by the utilization of force to comply with his force against their own will. It simply is not.\nThat knife that was exhibited in this case, that was introduced into evidence, *** the blade is approximately as long as half of my thumb. I think it was about an inch and a half long. It was about a quarter of an inch wide. That is the kind of device that people use to separate lines of cocaine. That is what they use it for. You can\u2019t use it in a knife fight. *** It has a very limited and small function, to separate things.\nThat knife is not indicative at all of a sexual assault that occurred as a result of force. All it does, Judge, is corroborate what John Phillips said they went there to do; a line of cocaine, and smoke a joint, and what you do with a line of cocaine is separate it with a little bitty implement. You can use a credit card. That will work. You can use a little bitty knife like that.\u201d\nThe prosecuting attorney recognized and inferentially agreed that the \u201cknife\u201d could hardly be classified as a threatening weapon, when he stated:\n\u201cWhether or not Your Honor chooses to believe that this knife is a deadly weapon ***. It is certainly a possibility this weapon\u2019s a possible element, a possibility of use of force by the Defendant.\nIt may be small, but it\u2019s sharp. It\u2019s kind of funny it comes from an auto parts store and not from somebody who does fingernails. The weapon in this ease Judge, isn\u2019t only that knife.\u201d\nPerhaps an appropriate starting point for a description of the \u201cknife\u201d is a statement of what it is not. It is not a pen knife and it is not a pocket knife. It is a frail metal blade two inches in length, a quarter of an inch wide, attached to a two-inch by one-fourth-inch plastic handle by an axel pin. As inferred by the foregoing description of the assistant State\u2019s Attorney, it is an advertisement souvenir from an automobile supply store. It resembles a folding finger nail file and appears to be no more menacing, as clearly demonstrated by Mary Berg\u2019s testimony.\nEven though we have the \u201cknife\u201d before us for our observation, the aforementioned trial attorney\u2019s commentary description of it, Mary Berg\u2019s and Julie Chisholm\u2019s foregoing testimony regarding it and the testimony of Mary Berg about it which follows, and because of the position I take on Phillips\u2019 conviction on this appeal, that there was no force, but consent, and thus, no rape, I need not decide whether the \u201cknife\u201d can be classified as \u201ca dangerous weapon\u201d or as an \u201cobject fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon\u201d under the provisions of the aggravated criminal sexual assault statute of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12\u2014 14(a)(1)).\nBriefly, recapitulating a portion of the evidence, Mary Berg related that when Phillips opened the glove compartment, pulled out a plastic bag, a mirror and the \u201cknife,\u201d and she asked, \u201cWhat is the knife for?\u201d and Phillips responded, \u201c[T]o cut up some cocaine,\u201d Julie asked Phillips to take them back to their car. Phillips responded that he would shortly. Julie then asked to get out of the car and Phillips moved his, the driver\u2019s, seat forward, opened the door on the driver\u2019s side and Julie got out of the car, came around to Mary\u2019s, the passenger\u2019s side, of the car, and asked Mary for a cigarette. When asked on direct examination what she did then, Mary Berg responded, \u201cI attempted to put my right hand underneath and grab hold of the knife.\u201d She claimed that Phillips grabbed and held both her hands to her side and simultaneously held the \u201cknife\u201d in her side. On redirect examination Berg testified:\n\u201cQ. Mary, though you didn\u2019t say anything about the knife, what, if anything, did you try to do with the knife when Julie went around the car?\nA. I reached my right hand over and I was going to try and grab the knife and break it or grab it out of his hand, and he said, \u2018hey, what the f-k are you doing,\u2019 and grabbed my two hands.\nQ. That\u2019s when he had your two hands with his hand?\nA. Yes.\u201d (Emphasis added.)\nStrangely, Julie did not see any of this tug-of-war between Mary and Phillips. But even if this testimony of Berg were true, which Phillips denied, and in which denial he was corroborated by the testimony of Julie Chisholm, the testimony demonstrated that the \u201cknife\u201d was not so threatening or menacing that Berg was afraid of it. This testimony also demonstrated that Berg perceived the \u201cknife\u201d to be so frail that she was unafraid to attempt to \u201cgrab the knife and break it,\u201d or, alternatively, to \u201cgrab it out of [Phillips\u2019] hand.\u201d At this point Berg related on direct examination that Phillips with one hand grabbed and held her two hands while he held the \u201cknife\u201d in his other hand. Mary Berg stated on cross-examination:\n\u201cQ. And Mr. Phillips had a knife in his hand?\nA. He had it in my left side.\nQ. But it was in his hand?\nA. Yes.\nQ. So he was holding both of your hands with one of his hands?\nA. He must have been.\u201d\nBerg\u2019s and Phillips\u2019 relative physiques thus became significant. The record discloses that Phillips was no giant hulk over Berg. Rather, the record conversely discloses that Berg was larger and younger than Phillips. Berg testified that on the morning of the occurrences she was in good physical condition, that she was 5 feet 5 inches tall, weighed 142 pounds and was 26 years of age. Phillips\u2019 description of himself was that he was a white male, 5 feet 6 inches tall, weighed 130 pounds and was 32 years of age. Phillips was one inch taller than Mary but he was 12 pounds lighter than she.\nBerg stated that she made no effort to get out of Phillips\u2019 car because she was afraid, that she did not say anything to Julie about the knife in her side, also because she was afraid, and that she did not give Julie the cigarette Julie asked for because Phillips was holding her hands, which Julie did not see, all of which is patently ludicrous, and that Phillips asked Julie to give them 15 minutes and said, \u201cso I can make out with her\u201d and that Julie walked away towards the end of the block, which is rational and makes sense. (Emphasis added.)\nPhillips denied that he had the knife in his hand when he leaned forward, pushed his seat up and let Julie out of the car. He stated that at no time did he ever stick the knife in Mary\u2019s side, and Phillips also denied that he grabbed or held Mary Berg\u2019s hands.\nThe majority\u2019s statement that Phillips, \u201cdoes not dispute that he, indeed, displayed the knife,\u201d although accurate for what it states, is grossly inaccurate and misleading in its purported implication. (181 Ill. App. 3d at 151.) Phillips never admitted, but indeed persistently denied, that he displayed or in any way used the knife to threaten or to intimidate Mary Berg.\nVIII\nTHE DRIVE TO THE SEX SCENE\nTHE FOREPLAY\nTHE NUDITY\nTHE SEX ACTS\nPhillips testified that Julie walked away to the end of a building about 30 or 40 feet away and he then drove off. Phillips stated that he drove to an alley at Ashland and Augusta Streets, about a five-minute drive, during which Mary Berg expressed a concern for Julie, but did not ask him to let her out or make any attempt to get out of the car.\nMary Berg related that Phillips drove for about five minutes to what \u201clooked like a bad neighborhood *** the inner city,\u201d during which she expressed a concern, not for her own safety in the car with Phillips, who had the \u201cknife,\u201d but rather, she expressed quite nobly and understandably a concern for the welfare of Julie. But according to Julie\u2019s testimony, Julie flagged down a police officer to whom she never mentioned her own or Berg\u2019s dangerous predicament with Phillips. Berg testified:\n\u201cQ. What were you doing during this ride?\nA. I was pleading and begging him to go back and get my girl friend. He couldn\u2019t leave her there. It was a bad neighborhood. She was by herself walking. I didn\u2019t think she knew where she was because he had driven away from Rush Street.\nQ. What did he say to you when you were saying that to him?\nA. He said, \u2018We will go back and get her in five minutes.\u2019\nQ. What did you say? Did you keep insisting?\nA. Yes, I did. I was starting to cry and becoming a little anxious and nervous.\nQ. How many times did you tell him to go back and get your girl friend?\nA. I pleaded and begged with him the whole way there. I told him she might get murdered or robbed or mugged or something, and I just couldn\u2019t leave her there.\u201d (Emphasis added.)\nMary Berg stated that a part of this five-minute drive by the defendant, with force and against her will, was on an expressway. Phillips denied that the drive was with force or against Berg\u2019s will or that any part of it was on an expressway. If Berg\u2019s version of the journey is accepted, it would appear to be rather unusual that Phillips, bent on rape, would take his unwilling victim onto a busy thoroughfare such as an expressway. Berg stated further that they came to a stoplight after they got off the expressway, but when they did so, she made no attempt to get out of the car.\nMary Berg did not explain how or whether Phillips held the knife while he drove on the expressway and the five minutes to the alley, where Phillips parked behind an occupied apartment building. She testified, however, that after Phillips stopped in the alley, he pointed the knife at her and told her that she was going to have sexual intercourse with him. Mary Berg further testified:\n\u201cQ. How far was the knife from you at that time?\nA. It was pointed right at me.\nQ. Was it up against your skin?\nA. No, no, but he had it in his hand pointing it at me.\u201d\nMary Berg stated that she was in the passenger seat, that Phillips pulled the lever down so that the back of the passenger seat went all the way back \u201clike [she] was laying [sic] back.\u201d Berg testified that Phillips then \u201cproceeded to rip my clothes off me.\u201d Berg said that she had on a pair of white slip-on shoes, a pair of white pants, a jacket, a sweater vest, underpants and a bra. Berg related further, on cross-examination:\n\u201cQ. When Mr. Phillips drove the car to the alley and parked his car, did he take your clothing off of you?\nA. Yes, he did.\nQ. And was he able to do that with one hand?\nA. I don\u2019t know.\nQ. Did you see the knife in his hand during that period of time when you first arrived and your clothing was being removed?\nA. I believe so, yes.\nQ. Did you ever see him put it down while you were in that car parked in the alley?\nA. He put it down a couple times, yes. I don\u2019t know where he put it though.\nQ. Now when you said he put the knife down a couple times when he took your clothes off, did he use both hands?\nA. I think he had the knife in his hand when he began.\nQ. But you don\u2019t know where it was at that point after he started taking your clothes offl\nA. No.\u201d (Emphasis added.)\nPhillips testified just the opposite; that after they arrived in the alley, he and Berg engaged in \u201cforeplay.\u201d He denied that he had the \u201cknife\u201d in his hand, or that he threatened Berg, or that he ripped Berg\u2019s clothing off. Phillips stated that at no time during the \u201cforeplay\u201d did Berg ask him to stop and that Berg voluntarily took her own clothing off.\nThe clothing that Berg wore at that time, which she testified Phillips ripped off of her, was admitted into evidence as People\u2019s exhibits. Although these garments are not before us on this appeal for our inspection, Berg testified that none of her clothing was ripped or torn.\nThe facts of the case at bar up to this point closely resemble the facts in People v. Kepler (1966), 76 Ill. App. 2d 135, 221 N.E.2d 801, where the defendant told the complainant his correct name and drove her in his own car to an isolated area, and then, according to the complainant, forcibly removed her slacks and undergarments and raped her on the front seat of his car. Kepler admitted that he removed the complainant\u2019s clothing and, like Phillips, Kepler contended that the act of intercourse was consensual. The complainant\u2019s clothing in Kepler, like Berg\u2019s clothing in the case at bar, was not tom or in any way damaged. In Kepler, this court reversed the defendant\u2019s rape conviction. Evidence of the alleged rape victim\u2019s torn and ripped clothing from the defendant\u2019s supposed forced disrobing of the victim was also absent in People v. Nellons (1984), 130 Ill. App. 3d 908, 475 N.E.2d 208, and People v. Szybeko (1962), 24 Ill. 2d 335, in which the rape convictions were reversed.\nMary Berg related that not only did Phillips take her clothes off, but that Phillips also completely disrobed himself. What Berg did, or what Phillips did with the \u201cknife,\u201d while Phillips disrobed and became nude is not revealed in the record. It would appear to be most unusual that a man bent on raping his victim, in his car, parked in an alley, behind an occupied apartment building, would himself completely disrobe. He would have to be insanely oblivious to any concern for detection and escape. The rape verdict was reversed in People v. Nellons (1984), 130 Ill. App. 3d 908, 475 N.E.2d 208, where the complainant similarly testified that the defendant, after disrobing her, disrobed himself and then raped her.\nPhillips testified that during their \u201cforeplay,\u201d Berg took off her own clothes and he disrobed himself, after which they engaged in further \u201cforeplay,\u201d in which they engaged in consensual, reciprocal oral sex, all of which consumed an estimated 20 minutes. Conversely, Berg testified that Phillips forced her, against her will, to have oral and vaginal sexual intercourse with him. Phillips denied that there was vaginal intercourse and denied that their mutual oral sex was with force or against Berg\u2019s will.\nBerg related that during their intercourse and while Phillips was on top of her, she was lying on her purse and because it was hurting her, she told Phillips, \u201cI just want to pull it out from underneath me. It is hurting me,\u201d that she got her purse out from under her and it was thrown to the back of the car on the floor.\nBerg also related that during their 20 minutes of sex acts, \u201c[she] had to go to the bathroom real bad,\u201d and \u201cPhillips let me out of the car to go to the bathroom.\u201d She said that she got out of the car on the passenger side and Phillips jumped out of the car, blocked her and told her that she could not go out of his sight. Berg stated that she squatted right there and urinated. Phillips was an unusually considerate rapist. He was concerned for the physical comfort or discomfort of his victim. But Mary testified however that Phillips had his hand on her head and held her hair while she urinated. Berg related that after she urinated, \u201c[she] jumped back in the car because [she] was afraid.\u201d (Emphasis added.) Phillips argues that this testimony of Mary Berg is preposterous, and even more so when considered in conjunction with her hereinafter set forth testimony of her subsequent bolting from Phillips\u2019 car.\nBerg additionally testified that while she performed oral sex on Phillips she had a piece of gum in her mouth, that Phillips told her to remove it, and that she did so.\nDuring the sex acts, according to Berg\u2019s testimony, the \u201cknife\u201d apparently played a rather insignificant threatening role because it did not deter Berg from at least mildly resisting Phillips. On direct examination, Berg testified:\n\u201cQ. What were you doing with your hands the first time he tried to get on top of you?\nA. I SUPPOSE I was pushing him away trying to get him off of me.\nQ. You weren\u2019t looking at him when he was taking your clothes off, were you?\nA. No.\nQ. What were you doing?\nA. I was crying and thrashing about and trying to fight him off, not fight him off of me, but trying to prevent it.\u201d (Emphasis added.)\nAccording to the following testimony of Mary Berg on recross-ex-animation, again, the \u201cknife\u201d played no influence whatsoever in her resistance.\n\u201cQ. While you were trying to fight him off as you just testified, were you able to injure him?\nA. No.\nQ. Did you scratch him?\nA. No.\nQ. Did you slap him?\nA. I didn\u2019t \u2014 I pushed him away from me.\u201d (Emphasis added.)\nCases are legion which hold that to sustain the charge of forcible rape, presently designated criminal sexual assault, the evidence must establish beyond a reasonable doubt that the sexual intercourse was committed by force and against the will of the female, and if she has the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. People v. Qualls (1961), 21 Ill. 2d 252, 258; People v. Faulisi (1962), 25 Ill. 2d 457, 461; People v. Taylor (1971), 48 Ill. 2d 91; People v. DeFrates (1965), 33 Ill. 2d 190; People v. Anderson (1974), 20 Ill. App. 3d 840, 851, 314 N.E.2d 651.\nPhillips relies on Berg\u2019s foregoing testimony of her resistance or lack thereof, not necessarily to establish that Berg\u2019s resistance was inadequate to establish rape, but rather as evidence that Berg was not threatened by the \u201cknife,\u201d and as corroboration of his testimony that Berg did not resist at all and that the sex act was consensual. Phillips testified that at no time while he was in Mary Berg\u2019s company did he strike, hit, slap, curse, or threaten Mary Berg and that he did not in any way attempt to do so.\nIX\nTHEIR EMBARRASSING DETECTION WHILE NUDE AND THEIR NUDE FLIGHT\nPhillips testified that they heard and saw a car coming in the alley with its headlights and spotlight on. It was a marked police car. Berg bolted out of Phillips\u2019 car and ran to the police car. Phillips stated that he and Berg were both high from the alcohol and drugs.\nPhillips urges that when Berg saw the marked police squad car, Berg panicked, out of fear of being caught by the police in what she considered to be an embarrassing and humiliating predicament and apprehensive about the consequence thereof on her newly acquired nursing license. Phillips also urges that Mary Berg knew that there was evidence of narcotics usage, narcotic paraphernalia and possibly narcotics in Phillips\u2019 car and that if the police were to apprehend her in Phillips\u2019 car, it could possibly jeopardize her nursing license and devastate her nursing career. Phillips contends that these factors and these factors alone, and not rape, motivated Berg, when she saw the police squad car, to bolt from Phillips\u2019 car to the police car and falsely accuse him of rape.\nAlthough Berg did not directly so testify, she testimonially inferred that she did not see the police car when she initially fled Phillips\u2019 car and that she did not see the police car in the alley until she had run quite some distance from Phillips\u2019 car. She stated that she flagged down the officers, who thereafter gave chase and apprehended the defendant.\nIt is difficult to perceive Berg\u2019s testimony that, following 20 minutes of various sexual acts with Phillips, through force, against her will, and, while afraid to flee, and even after Phillips became flaccid, that she would then belatedly flee, after the acts had been forcibly committed upon her, with no aid or assistance in sight. Why would or should she then flee? The defendant was flaccid and, according to Mary Berg, he had already forcibly performed and completed his sex acts upon her. Why flee, if no help was visible or available? That the marked police squad car was the first car she saw when she fled and it just happened to be there, certainly substantiates Phillips\u2019 version that Berg bolted from his car when she saw the marked police squad car because she was embarrassed and not out of any fear she had of Phillips.\nPhillips candidly confesses that he, too, panicked when the police squad car approached and when Berg bolted nude from his car. He also was nude. There were drugs, drug paraphernalia and evidence of recent drug usage in his car. Phillips had no prior criminal record and he had never been arrested before. Phillips fled nude in his car. The police officers gave chase with their siren and mars light on. Phillips ran his car into a fence and damaged it. He fled nude on foot. He hurdled several fences and broke his ankle when he jumped down into a concrete gangway. The officers found and arrested Phillips lying under a porch, with his feet and ankles swollen and nude except for his socks. The officers took him to a hospital where he was treated for his broken ankle. They also transported Berg to the hospital where her vaginal smear failed to reveal spermatozoa, which Phillips argues corroborates his testimony that he did not have vaginal intercourse but only oral sex with Berg.\nX\nTHE HANDCUFFS\nThe officers retrieved Berg\u2019s clothing from Phillips\u2019 car. The officers also retrieved the \u201cknife\u201d from Phillips\u2019 car, but that was not all. They also retrieved a pair of handcuffs from his car. Berg never mentioned any handcuffs and never testified that she even saw them in Phillips\u2019 car. Chisholm did not utter one word of testimony about the handcuffs and Phillips did not say anything about them during the entire evening. There was absolutely no evidence that the handcuffs had any relevancy in the case or to the charges for which Phillips was on trial. Yet, over Phillips\u2019 objection, the trial court granted the State\u2019s motion and admitted them into evidence. In urging the trial court to find Phillips guilty, the prosecutor made the following fallacious and irrelevant argument regarding the handcuffs:\n\u201c[W]ho would flee from the police and have a set of handcuffs in his car under the seat, which we believe bears on what his intent was at that time. What is a person who rebuilds buildings doing with handcuffs in the car? Is that like a billyclub you keep in the car to keep yourself from getting robbed? No. That can be used for only one thing, that\u2019s restraining a human being. He never got a chance to use the handcuffs. He admitted, even though she wanted to go to her friend, he wouldn\u2019t let her go.\nHe\u2019s the kind of guy who keeps handcuffs under the front seat when he goes out on Rush Street shopping for women. What\u2019s he going to do with handcuffs? What kind of women is he looking for on Rush Street or whatever women he finds, what does he intend to do with them once getting into the car using cocaine and marijuana as the carrot, using a knife as the stick once he gets her there.\nYour Honor can see what the plan of a man like this is who goes out on Rush Street with handcuffs in his car.\u201d\nThere was absolutely no basis in the evidence for this foregoing argument. We have no way of discerning from the record before us the extent to which this argument or the handcuffs influenced the trial court in reaching its guilty findings. Admission of the handcuffs into evidence was erroneous, the prosecutor\u2019s foregoing arguments about the handcuffs were also erroneous, and the trial court erred in relying on the handcuffs or in being persuaded by the prosecution\u2019s argument about them in arriving at the guilty verdicts, which tilted the scales of guilt against the defendant. This was plain error, even though not properly assigned in the post-trial motion, for which the defendant\u2019s conviction should be reversed.\nXI\nTHE FINALE\nThe officers transported Berg from the hospital to her brother\u2019s home in Evanston, where they discovered Julie Chisholm asleep in her car in front of the apartment, tranquilly and patiently awaiting Phillips and Berg\u2019s arrival.\nPhillips argues that Berg\u2019s subsequent telephone inquiries from Michigan about her hospital examination results are a further manifestation of Berg\u2019s anxieties about the impact of her conduct on the night in question on her career as a licensed nurse. Phillips contends that being a licensed nurse, Berg would naturally deny having used illegal drugs, in order to protect her nursing license from possible revocation. Phillips further argues that Berg's telephone inquiries to the hospital at which she was examined were not to \u201cinquire whether an alcohol level had been drawn *** or for *** personal reasons.\u201d Berg admitted that she had been drinking alcohol that morning and it would be ludicrous for her to later call the hospital and inquire if her blood showed an alcohol content. She knew that it would. Phillips argues therefore that Berg\u2019s telephone inquiry to the hospital was really to find out if her blood showed the presence of marijuana or cocaine, that Phillips swore she consumed with him, and which inquiry, Phillips argues, Berg would naturally deny. Upon denying on cross-examination that she consumed marijuana or cocaine on the morning of June 24, Berg further testified:\n\u201cQ. While you were at the hospital, St. Mary of Nazareth Hospital on West Division Street here in Chicago, did they draw blood from you?\nA. I believe they did. I really don\u2019t remember.\nQ. Were you concerned about the level of blood alcohol in your system after you left the hospital on June 24th of 1985?\nA. I inquired, I called the hospital from Michigan and I wanted to find out what kind of results came back from the medical exam, and when I was on the phone, I did inquire whether an alcohol level had been drawn on me or not for my own personal reasons.\nQ. And did the person that you spoke to at the hospital tell you that your blood was not submitted for chemical analysis to determine the alcohol level in your blood?\nA. Yes, they did.\nQ. And did the person tell you that your blood had not been submitted to a toxicologist to determine the existence of any barbiturates or any marijuana in your blood?\nA. I didn\u2019t inquire about that.\u201d (Emphasis added.)\nPhillips urges that Berg\u2019s foregoing response that she did not inquire whether her blood had been submitted to a toxicologist, or whether a toxicologist had determined the existence of any barbiturates or marijuana in her blood, because of the aforementioned circumstances, is naturally suspect. Phillips contends that the true purpose of Berg\u2019s call to the hospital was to learn if her blood had been toxicologi-cally examined and that Berg knew the results would have been positive for drugs if her blood had been so examined.\nXII\nTHE CONCLUSION\nAfter the foregoing careful review of the evidence, in a light most favorable to the prosecution, as required by the beforemen-tioned decisions of the supreme court, it is clear that no rational trier of fact could have found the essentials of the crimes charged beyond a reasonable doubt, that the evidence fails to and is insufficient to prove the defendant\u2019s guilt beyond a reasonable doubt and to create an abiding conviction that the defendant is guilty of the crimes charged, that the evidence establishes beyond a reasonable doubt that the defendant is not guilty of the crime charged, and that the evidence is so unreasonable, improbable and unsatisfactory that it creates and leaves a reasonable doubt of defendant\u2019s guilt. The defendant\u2019s testimony is corroborated by the testimony of the State\u2019s witness, Julie Chisholm, and, as the supreme court stated in reversing the rape conviction in People v. Qualls (1961), 21 Ill. 2d 251, 257-58, 171 N.E.2d 612, Mary Berg\u2019s testimony in the case at bar lacks verisimilitude. The defendant\u2019s judgments of conviction should therefore be reversed. Accordingly, I dissent.\nAPPENDIX\nThe following are Illinois cases of appellate review in which People v. Collins (1985), 106 Ill. 2d 237, and the sufficiency of the evidence considered in a light most favorable to the prosecution, to sustain a guilty finding, are cited and discussed:\nPEOPLE v. YEAR CASE NO. CHARGE\n1. Devalle 3/17/89 87-1034 attempt murder\n2. McBounds et al. 2/22/89 86-0369 murder\n3. Roy & Emmaline Williams 1/27/89 87-0060 & 87-0187 rape\nILL. APP. 3D\nPhillips 1989 181,144 rape\nFountain 1989 179, 986 battery io\nAvant 1989 178, 613 robbery\nCall 1988 176, 571 DUI t-\u2019\nHetzel 1988 176, 630 obstructing a police officer oo\n9. Johnson 1988 175, 908 burglary\n10. Barlett 1988 175, 686 battery\n11. Whitlock 1988 174, 749 murder\n12. Bedony 1988 173, 613 murder\n13. Barnett 1988 173, 477 attempted murder\n14. Roy 1988 172, 16 drugs\n15. Ludell 1988 172, 26 drugs\n16. Daniels 1988 164,1055 rape\n17. Lee 1987 164,155 murder\n18. Pace 1987 163,1012 battery\n19. Page 1987 163, 959 murder\n20. Harris 1987 162, 618 burglary\n21. Whitecotton 1987 162, 173 rape\n22. Powell 1987 160, 689 perjury\n23. Rodgers 1987 160, 238 retail theft\n24. Chaney 1987 157, 552 aggravated kidnapping/rape\n25. Brown 1987 154, 696 drugs\n26. Boone 1987 152, 831 murder\n27. Ramierz 1986 151, 731 burglary\nApparently the court was referring to Sir Matthew Hale (1609-1676), who became a justice of the Common Pleas about 1654 and later a justice of the Court of the King\u2019s Bench. On May 18, 1671, he was created chief justice of the King\u2019s Bench, where he presided for between four and five years with great distinction. 24 Dictionary of National Biography 18-24 (Smith, Elder & Co. 1890) (edited by L. Stephen & S. Lee).\nNot a single decision of any appellate court which cites or relies on Collins, set forth in the attached appendix, is contrarily decided.\nPhiIlips testified that when he was released from custody on bail and picked up his car, \u201croaches\u201d \u2014 partly smoked marijuana cigarettes \u2014 were on the floor of the car and the mirror was in the glove compartment. This testimony was uncontradicted. The \u201cknife\u201d used to cut the cocaine and Mary Berg\u2019s clothing were seized from the car by the officers when Phillips was arrested.", "type": "dissent", "author": "JUSTICE PINCHAM," } ], "attorneys": [ "Steven Clark and Patricia Unsinn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, Vickie E. Voukidis, and Joseph G. Howard, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN M. PHILLIPS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201486\u20142711\nOpinion filed March 10, 1989.\nSteven Clark and Patricia Unsinn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, Vickie E. Voukidis, and Joseph G. Howard, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0144-01", "first_page_order": 166, "last_page_order": 210 }