{ "id": 2618791, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL ROBERTS, Defendant-Appellant", "name_abbreviation": "People v. Roberts", "decision_date": "1989-04-19", "docket_number": "No. 1\u201487\u20142188", "first_page": "313", "last_page": "321", "citations": [ { "type": "official", "cite": "182 Ill. App. 3d 313" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "498 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643117 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0191-01" ] }, { "cite": "533 N.E.2d 802", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. 2d 70", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557241 ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0070-01" ] }, { "cite": "483 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130811 ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0054-01" ] }, { "cite": "285 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468092 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0259-01" ] }, { "cite": "430 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "88 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083259 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0245-01" ] }, { "cite": "437 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092555 ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0251-01" ] }, { "cite": "490 N.E.2d 1334", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 1090", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3497610 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/1090-01" ] }, { "cite": "529 N.E.2d 972", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "124 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217570 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/124/0176-01" ] }, { "cite": "432 N.E.2d 950", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 291", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5476819 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0291-01" ] }, { "cite": "121 Ill. 2d 574", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "520 N.E.2d 55", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5071274 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0242-01" ] }, { "cite": "72 Ill. B.J. 404", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1984, "opinion_index": 0 }, { "cite": "261 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 2d 465", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1577264 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/125/0465-01" ] }, { "cite": "290 N.E.2d 650", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2762791 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0599-01" ] }, { "cite": "341 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 1029", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2964662 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/1029-01" ] }, { "cite": "392 N.E.2d 251", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "259" } ], "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 58", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3267304 ], "weight": 2, "pin_cites": [ { "page": "69-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0058-01" ] }, { "cite": "122 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. 2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701536 ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0224-01" ] }, { "cite": "283 N.E.2d 225", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392065 ], "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0418-01" ] }, { "cite": "515 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "118 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188213 ], "weight": 3, "pin_cites": [ { "page": "268" }, { "page": "274" }, { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0263-01" ] }, { "cite": "458 N.E.2d 1312", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593132 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0900-01" ] }, { "cite": "387 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "75 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2991135 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/75/0001-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 908, "char_count": 19171, "ocr_confidence": 0.78, "pagerank": { "raw": 1.1779232408761505e-07, "percentile": 0.5879541625785905 }, "sha256": "74a24f752da1dcebdbdcfd797fdd017f527128ed4fd6c2bd4c5c87daa2fbf0fc", "simhash": "1:9afe1dd563febde4", "word_count": 3208 }, "last_updated": "2023-07-14T18:08:14.831486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL ROBERTS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Karl Roberts was found guilty of aggravated criminal sexual assault and criminal sexual assault. The trial court entered judgment on the aggravated criminal sexual assault count and sentenced defendant to an extended term of 60 years\u2019 imrisonment. Defendant appeals, contending that the jury was not instructed that the State must prove the element of nonconsent beyond a reasonable doubt; that the State failed to establish the element of bodily harm; that the trial court improperly admitted statements regarding defendant\u2019s recent release from prison; and that the extended term sentence is improper.\nThe victim testified that on June 28, 1985, she left her home at about 8:30 p.m. with two girl friends, Lucille Walker and Janell Fletcher. In the early morning hours, the victim and Lucille met defendant and Tina Hicks outside of a tavern. Lucille and Tina knew defendant, but the victim did not know him. The victim left the tavern to walk home alone. The victim and Lucille testified that defendant followed the victim. Lucille testified that when the victim left the tavern she had no facial swelling, no arm injuries, and was fully dressed.\nThe victim, who is four feet nine inches tall and weighs 108 pounds, testified that defendant approached her from behind, demanded sex, put one hand over her mouth and the other hand around her waist, and dragged her into an alley. When the victim screamed, defendant threatened to kill her. The victim testified that defendant said he wanted sex because \u201che had just got out of the penitentiary, and I was going to give him some.\u201d\nThe victim testified that defendant struck her on the left side of her face with his fist, and threw her down to the cement, where she scraped her right elbow. Defendant ripped off some of her clothes. Defendant forced vaginal intercourse and then fellatio upon the victim. When the victim resisted again, defendant threw her back down onto her hands and knees and again raped her vaginally.\nThe police responded to a telephone call reporting the victim\u2019s screams and drove into the alley at 3:30 a.m. Officer Ivan Jefferson observed defendant jump up, pull on his pants, and run. The victim emerged from the garage area wearing shoes and a shirt, and crying hysterically. The victim told Jefferson she had just been raped, and she described defendant. The victim was treated at the hospital and returned home at about 5:45 a.m. on June 29. Later that day, she noticed her face was swollen. That afternoon, Tina gave defendant\u2019s name to the victim, which she in turn gave to the police. On June 30, she identified defendant in a photo array.\nUpon learning that defendant had just been released from the penitentiary, Officer Kenneth White was able to obtain a last known address, which was several doors away from where the rape occurred. The Illinois Department of Corrections parole division gave the police a current address, and defendant was arrested. On July 1, the victim identified defendant in a lineup.\nLena Guiterrez, an emergency room nurse, testified as to the victim\u2019s care after she was brought to the hospital. She told Guiterrez she had been raped and hit in the face. The victim\u2019s right elbow was bandaged, and she received a tetanus shot. Officer Rick Roberts testified that the vaginal smears tested positive for the presence of spermatozoa.\nAt trial, defendant testified that he and the victim walked away from the tavern arm in arm and he agreed to pay her $10 to have sex with him. They had sex in a stranger\u2019s backyard, but the'victim then demanded more money. She threatened that he would pay one way or another. Defendant denied that he ejaculated. When they had finished, they both dressed and left in different directions. Defendant did not tell this to the police because he did not have proper counsel. He denied telling the victim he had just been released from prison; however, defendant stated he had been released on March 22,1985.\nIn rebuttal, an assistant State\u2019s Attorney testified that he interviewed defendant on July 1, 1985. Defendant stated that he did not have sex with the victim and that they parted company when they reached the alley.\nDefendant initially contends that the jury instructions were inadequate as a matter of law because they required defendant to prove consent beyond a reasonable doubt. The jury was instructed, without objection, as follows:\n\u201cTo sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:\nFirst: That the defendant committed an act of sexual penetration upon [the victim]; and\nSecond: That the act was committed by the use of force or threat of force; and\nThird: That the defendant caused bodily harm to [the victim].\nIf you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.\nIf you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.\nIt is a defense to the offense of criminal sexual assault and aggravated criminal sexual assault that [the victim] consented.\nThe word \u2018consent\u2019 means a freely given agreement to the act of sexual penetration in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the defendant shall not constitute consent.\u201d\nIn order to preserve an issue for review, there must be a specific trial objection and inclusion in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant made no objection here and thus has waived the issue for review. Defendant maintains, however, that the issue of consent is an affirmative defense and thus it is plain error not to include it in an instruction covering the elements of the crime.\nThe court has the burden of seeing that the jury is instructed on all elements of the crime charged, the burden of proof, and the presumption of innocence. The failure to do so results in the denial of due process. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331; People v. Williams (1983), 120 Ill. App. 3d 900, 458 N.E.2d 1312.) We hold that an overall review of the entire set of jury instructions reveals that the trial court here met its duty. No plain error occurred.\nIn the present case, we believe the State\u2019s evidence sufficiently established \u201cnonconsent\u201d beyond a reasonable doubt. Consent is the very antithesis of force. Where the State proves defendant used force, it necessarily proves the victim did not consent. Strong support for our holding that nonconsent is properly proved by inference when the State proves the \u201cforce or threat of force\u201d element is found in a recent decision of our supreme court.\nIn People v. Haywood (1987), 118 Ill. 2d 263, 268, 515 N.E.2d 45, defendant argued that \u201cforce or threat of force\u201d was unconstitutionally vague. The court stated in dicta that nonconsent should be proved beyond a reasonable doubt. Significantly, the court found nonconsent to be the equivalent of use of force.\n\u201cIn common understanding, if it is said that one was forced to perform an act, it follows that the person\u2019s act was nonconsensual; and if one freely consents to the performance of an act upon oneself, clearly that person has not been forced. Thus, although the prosecution is not required to prove nonconsent formally, it is obvious that if the prosecution shows that there was an act of sexual penetration by force, that evidence demonstrates that the act was nonconsensual. To prove the element of force is implicitly to show nonconsent. Too, if force is established it would be redundant to require a separate showing of nonconsent as part of the prosecution\u2019s case in chief. Thus, consent is made a defense to be raised by the accused to rebut evidence of force presented by the State.\u201d (People v. Haywood, 118 Ill. 2d at 274.)\nSimilarly, our supreme court held in People v. Springs (1972), 51 Ill. 2d 418, 424, 283 N.E.2d 225, that it was not plain error to give an instruction on the element of \u201cby force and against her will\u201d while refusing to instruct the jury further defining the term \u201cconsent.\u201d The court held that the use of \u201cvoluntary\u201d and \u201cconsent\u201d together was somewhat redundant, but found no error. Cf. People v. Fryman (1954), 4 Ill. 2d 224, 122 N.E.2d 573 (error to refuse consent instruction where proper objection made to trial court\u2019s refusal, and State bears burden of proving want of consent beyond a reasonable doubt).\nIn People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251, this court stated that, \u201c[i]n a sense, consent is an issue in every rape case tried in Illinois. The State is obliged to prove beyond a reasonable doubt that the act was \u2018against her will.\u2019 *** This is the equivalent to proof of absence of consent.\u201d Burgin, 74 Ill. App. 3d at 69-70, 392 N.E.2d at 259. See also People v. Hayn (1976), 34 Ill. App. 3d 1029, 341 N.E.2d 182; People v. Browry (1972), 8 Ill. App. 3d 599, 290 N.E.2d 650; People v. Hanserd (1970), 125 Ill. App. 2d 465, 261 N.E.2d 317.\nWe believe that no plain error occurred here. The instructions, to which defendant offered no objection, adequately stated the law of consent. Defendant was not required to prove consent, and the jury was allowed to weigh \u201cforce\u201d evidence against \u201cconsent\u201d evidence to determine whether force or threat of force was present.\nWe also note that under the former Illinois tape statute, one element was that the act occur against the victim\u2019s will. (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 1 (repealed 1984).) In 1983, the legislature rewrote the statute and eliminated nonconsent as an element of the offense. (See Inman & Lewis, H.B. 606: New Problems of Policy and Enforcement, 72 Ill. B.J. 404 (1984).) Significantly, a preliminary draft stated, \u201c \u2018If the accused raises consent as a defense *** it shall be an affirmative defense ***.\u2019 \u201d (72 Ill. B.J. at 406.) The enacted version deleted the word \u201caffirmative\u201d:\n\u201cIt shall be a defense to any offense *** where force or threat of force is an element of the offense that the victim consented.\u201d (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 17(a).)\nThe legislature clearly did not intend consent to be an affirmative defense, or to include it as an element of the crime.\nWe disagree with the holding in People v. Coleman (1988), 166 Ill. App. 3d 242, 520 N.E.2d 55, appeal denied (1988), 121 Ill. 2d 574. In Coleman, the court stated that it was plain error to omit an instruction on consent, notwithstanding defendant\u2019s failure to object. The Cole man court reasoned that the instruction was vital because the State was obligated to prove nonconsent. Its only relevant support cited was Illinois Pattern' Jury Instructions, Criminal, No. 11.34, Committee Notes (2d ed. Supp. 1987).\nWe do not decide the debate as to whether consent is an \u201celement\u201d of the offense of aggravated criminal sexual assault which requires an instruction to that effect in every case. We do not decide, therefore, whether consent is an \u201caffirmative defense\u201d which shifts the burden of proof as opposed to a mere \u201cdefense.\u201d We are faced only with the question of whether plain error occurred under the facts presented here.\nNotwithstanding our finding that no plain error occurred, we hold further that even if it were error to omit the consent instruction, it was harmless error beyond a reasonable doubt. The trial court instructed the jury on the elements of aggravated criminal sexual assault, and on the defense of consent, the presumption of innocence, and the State\u2019s burden. Overall, the instructions fully and fairly defined the applicable law. See People v. Bunting (1982), 104 Ill. App. 3d 291, 432 N.E.2d 950.\nMoreover, any error was harmless beyond a reasonable doubt because the result of the trial would not have differed if the proper instruction had been given. See People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972; People v. Bailey (1986), 141 Ill. App. 3d 1090, 490 N.E.2d 1334.\nIn the present case, the evidence proved beyond a reasonable doubt that the victim did not consent to sexual intercourse with defendant. The victim testified that defendant, whom she had met, abducted her from behind; dragged her into an alley; threatened to kill her; struck her face; threw her to the ground; and forced intercourse twice and fellatio once. She screamed, causing someone to telephone the police department. As a result, police found the victim in the alley, half-naked and hysterical. She consistently reported to the police and hospital personnel that she had been raped. The physical evidence supported these statements. In addition, other evidence showed that the victim was uninjured, and was fully clothed, when she left the tavern alone, with defendant following her.\nIn his statement following arrest, defendant stated he never had sexual intercourse with the victim, and he later denied ejaculating. At trial, defendant testified he had sex with her for money. If the jury had believed defendant that the consensual sex occurred, it would have found him not guilty. Thus, even if the trial court had instructed the jury as to consent, the result of the trial would not have differed.\nDefendant next contends that he was not proved guilty of aggravated criminal sexual assault beyond a reasonable doubt because there was insufficient evidence of bodily harm to prove more than mere criminal sexual assault. (See Ill. Rev. Stat. 1987, ch. 38, par. 12\u2014 14(a).) Bodily harm, although difficult to pinpoint, involves some sort of physical pain or damage to the body, such as lacerations, bruises or abrasions, whether temporary or permanent. (People v. Haywood, 118 Ill. 2d at 276, quoting People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633.) Defendant twice punched the victim in the face and threw her to the concrete ground. The victim\u2019s face was swollen on the day following the attack. According to the emergency room nurse, her right elbow abrasion was treated at the hospital. The evidence sufficiently established the requisite element of bodily harm.\nDefendant also contends that certain statements regarding his recent release from prison were prejudicial and irrelevant. Defendant\u2019s failure to object waived the issue on appeal. (See People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) No plain error occurred because the evidence was not closely balanced and any error was not of such a magnitude that it resulted in the denial of a fair trial. (See People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.) Moreover, no error occurred where the references were probative of defendant\u2019s actions in committing the crime and were relevant to his intent and identity. See People v. Smith (1972), 6 Ill. App. 3d 259, 285 N.E.2d 460.\nDefendant finally contends that the trial court abused its discretion in sentencing him to an extended term of 60 years.\nAggravated criminal sexual assault, a Class X felony, is punishable by 6 to 30 years\u2019 imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 12\u2014 13, 1005 \u2014 8\u20141(3).) The term may be extended to 30 to 60 years where defendant has been convicted of another Class X felony within 10 years prior to the present conviction. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 \u2014 5\u20143.2(b)(1), 1005 \u2014 8\u20142(a)(2).) Defendant argues before this court that his \u201ccriminal record is minimal.\u201d Defendant was previously convicted of raping a woman in 1982. He pleaded guilty to rape and aggravated kidnapping and was sentenced to six and four years concurrently. Thus, defendant was eligible for an extended-term sentence. The issue, then, is whether the court abused its discretion in imposing such a sentence. People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.\nThe primary factor considered by the trial court at the sentencing hearing was that this was defendant\u2019s second conviction for the same offense. Defendant was released on March 22, 1985. He raped the victim here just three months later. At the sentencing hearing, the first rape victim testified that defendant approached her in approximately the same area where the victim in the present case was raped. Similar to the facts in this case, the prior rape victim testified that defendant grabbed her from behind, held her throat, forced her into an alley, and tore her clothes. Defendant struck her on the head with his fists, breaking her nose, cutting her mouth, and causing her to faint. He took her to a garage, removed her clothes, and forced her to have sexual intercourse. When the police arrived, defendant fled. The victim was treated at the hospital for physical injuries and received extensive psychological counseling as a result of the severe trauma.\nDefendant complains that the trial court considered the victim\u2019s psychological harm when she offered no testimony about this. In contrast, he also states generally that he would not \u201cmak[e] light of the trauma experienced by a victim of sexual assault.\u201d We think the psychological harm resulting from the brutal rape graphically depicted here by the victim is obvious. (See People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802.) We have already found that there was sufficient evidence of physical harm.\nMoreover, contrary to defendant\u2019s argument, there was no double enhancement where \u201cbodily harm\u201d was an element of the offense (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 14(a)(2)), since the aggravating factor for sentencing purposes required \u201cserious harm\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 1005 \u2014 5\u20143.2(a)(1)). (See People v. Kim (1986), 148 Ill. App. 3d 191, 498 N.E.2d 831 (defendant\u2019s use of force was beyond that required to establish rape, and thus use of knife could be used as aggravating factor for sentencing purposes).) In addition, the record shows the court did consider the mitigating factors urged by defendant, including that his \u201ccriminal record is minimal,\u201d that he received his GED in prison, reported regularly to his parole officer, had a job, and was \u201csupported wholeheartedly by his family.\u201d Notwithstanding these factors, we find no abuse of discretion in sentencing defendant to an extended term where, three months after his release from prison for a rape conviction, he returned to the same neighborhood and brutally raped a second woman.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nFREEMAN, P.J., and RIZZI, J., concur.\nJustice McNamara participated in this opinion prior to his transfer to the sixth division.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Michael J. Pelletier and Martin Carlson, both of State Appellate Defender\u2019s Office, of Chicago (Stacy J. Krebs, of Chapman & Cutler, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Mark A. Shlifka, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL ROBERTS, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201487\u20142188\nOpinion filed April 19, 1989.\nMichael J. Pelletier and Martin Carlson, both of State Appellate Defender\u2019s Office, of Chicago (Stacy J. Krebs, of Chapman & Cutler, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Mark A. Shlifka, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0313-01", "first_page_order": 335, "last_page_order": 343 }