In а bench trial, defendant, Gary Leonhardt, was found guilty of rape, deviate sexual assault, and unlawful restraint. He was sentenced to six years for rape, six years for deviate sexual assault and three years for unlawful restraint. The sentences are to be served concurrently in the Illinois Department of Corrections. Defendant contends that (1) the information charging him with rape was fatally deficient; (2) he was not proven guilty beyond a reasonable doubt; and (3) he was denied a right to present a defense. We affirm.
On August 13, 1983, the victim (Vic), was 26 years old. At about 7 p.m., Vic and her roommate were at a picnic in Schiller Woods, Cook County.
After they left the gas station, defendant and Vic began traveling on the motorcycle in the direction of Vic’s workplace. Vic told defendant
Vic told defendant that the gravel and rock were hurting her back. Defendant rolled over and put Vic on top of him. It then appeared that defendant fell asleep. Vic got up, grabbed her clothes and although she was half naked, she started to run toward the road. Defendant chased her and grabbed her neck and began choking her. He then hit her twice in the face and she almost passed out. Defendant then put Vic back оn the motorcycle and drove into the woods. He stopped when he reached a grassy area with picnic tables. Vic was scared because she thought that he was going to dump her into the river. Defendant and Vic sat on a picnic table and defendant said that “he wanted to fuck her in the ass,” and he proceeded to have anal interсourse with Vic. Afterwards, defendant had sexual intercourse with her.
Later, defendant put Vic back on the motorcycle and they rode to another picnic area where Vic began crying and shaking. Defendant then had sexual intercourse with Vic again. When defendant fell asleep, Vic ran out to the road and flagged down a police car. She told the two police officers that she had been raped and beaten. A police officer and Vic went to the picnic area where the last attack took place, and defendant was arrested. Vic was taken to a hospital where she was examined and her injuries were photographed. The record reflects that Vic had dark bruises on her breasts, substantial scratches on her back and buttocks, her left eye and left cheek were swollen and Vic had minor scrapes on her knees and feet. The police officers testified that when they first saw Vic, her clothes were soiled and disheveled, the left side of her face was swollen and she seemed nervous and upset.
Defеndant first contends that the information charging him with rape is insufficient because (1) the evidence is that defendant and Vic had sexual intercourse three times on the same day but the information
Defendant did not claim that the information charging him with rape was insufficient during trial or in his post-trial mоtion. The State therefore contends that defendant waived any claim that the information charging him with rape was deficient. We reject the waiver argument. (People v. Vaughn (1985),
Here, we believe it is clear that the information charging defendant with rape apprised him of the offense with sufficient particularity to have enabled him to prеpare his defense. Initially, we observe that the information plainly establishes the date and county of the offense, nature and elements of the charge, and defendant’s name. Moreover, the information is worded in the terms of the statute which sets forth the elements of the offense. Ill. Rev. Stat. 1983, ch. 38, par. 11 — 1(a) (repealed by Pub. Act 83 — 1067, §28, eff. July 1, 1984 (now Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13)).
In аddition, during the pretrial course of the case, defendant filed a motion for discovery and requested a bill of particulars in which he requested the time and date of the occurrence, as well as the street address and physical description of the occurrence site. The State complied with the requests made in defendant’s motion for discоvery and answered the request for a bill of particulars by stating that the occurrence took place on August 13, 1983, at approximately 9 p.m. at or about Schiller Park Woods in Cook County.
Moreover, any doubt that could possibly have existed concerning the specifics of the rape charge and the events of August 13, 1983, was removed at a pretrial hearing in which Vic testified. During trial, defendant attempted to impeach Vic by using her testimony from the pretrial hearing. Defendant later testified on direct examination
We next address defendant’s claim that although he has been convicted of rape, he is not protected from double jeopardy as to the three sexual intercourse encounters he had with Vic on August 13, 1983. On this issue, the State admits that as a result of the conviction of rape in this case defendant cannot be charged with rape again for any of the three sexual intercourse encounters he had with Vic on August 13,1983. In its brief, the State concedes:
“The three occurrences of vaginal intercourse werе not independent, overt acts but rather three offenses based on the same continuing act, even though minimally separate in time and place. *** The defendant has been tried for the three rapes of August 13, 1983. Since the defendant has been charged and tried for all the crimes occurring on August 13, 1983, Double Jeopardy cannot attach.”
Under the circumstances, we hold that as a result of the affirmance of defendant’s conviction of rape in this case, he may not be charged again with rape for any of the three sexual encounters he had with Vic on August 13, 1983, because double jeopardy would be applicable. We conclude that not only is the information charging defendant with rape sufficient to have enabled him to prepare his defense, but it is also sufficient to plead the resulting conviction as a bar to future prosecution. We therefore reject defendant’s argument that the information charging him with rape is insufficient.
Defendant next contends that he was not proven guilty beyond a reasonable doubt because Vic consented to having sexual intercourse. He argues that “when they drove off from the picnic she reached inside his shorts and held his penis, arousing him.” However, the alleged act to which defendant refers did not occur immediately before or in conjunction with the sexual attacks that took place later in the woods. Thus, the alleged act does not constitute or demonstrate consent to have sexual intercourse by force and against one’s will. In addition, Vic denied defendant’s accusation.
Defendant also emphasizes Vic’s apparel to demonstrate that she consented to the attack. Defendant argues that the cocktail waitress outfit that she was wearing was “a suggestive costume.” Defendant states that “at this moment she was wearing black nylon
Defendant next argues that “[Vic’s] failure to resist or even object when it was within her power to do so, conveyed the impression of consent,” and that she disrobed herself. Defendant states: “She told Gаry only to: ‘just not to hurt me, that I would do whatever he wanted.’ She disrobed and defendant squeezed her breasts hard. *** She then took her shirt off and put it to the side and told Gary to: ‘Just go ahead and do what you want to do just don’t hurt me, and take me to work.’ She said Gary Leonhardt then had intercourse with her and ejaculated on her stomach.” We reject defendant’s argument beсause physical resistance or demonstrative protestations are not necessary to demonstrate that a woman was forced to have sexual intercourse. Moreover, the absence of physical resistance or demonstrative protestations does not establish or demonstrate consent if the woman is threatened or in fear of being. harmed. Defendant also argues that he thought Vic’s repeated statements to him that she “wanted to go to work” meant that she wanted to engage in sex with him. This double entendre is plainly specious. '
After one of the attacks, defendant and Vic saw a man scrounging in garbage cans that were in the area. According to Vic, the man “was far enough аway where I couldn’t make out his features or anything.” Defendant told Vic to get dressed in a hurry and to be quiet and sit on the picnic table and act like lovers. He then put his arm around Vic so that her face was on his chest. The unidentified man then left the area. Defendant argues that because Vic did not make an outcry or try to escape when the man was in the area she consented to the attack. However, merely because a woman does not make an outcry to try to escape does not mean that she was not being forced to haye sexual intercourse, nor does it mean that she consented to having sexual intercourse if she was threatened or in fear of being harmed. We find defendant’s argument to be without merit.
Defendant next. argues that the record shows that Vic consented because there is no evidence that she suffered any trauma to her sex organs or anus. However, medical evidence of physical injury
We believe that all of defendant’s arguments relating to consent fail to recognize the plain but significant distinction between consent and provocation. While express or implied consent will negative a woman’s claim that the sexual intеrcourse was by force and against her will, mere proof of provocation will not negative a woman’s claim that the sexual intercourse was by force and against her will. Provocation is not tantamount to implied consent where force or threat of force is used to have sexual intercourse. Thus, mere provocation will not prevent or reverse a conviction of rape. Here, we believe that the facts and circumstances are sufficient for the trier of fact to believe beyond a reasonable doubt that Vic did not consent to have sexual intercourse with defendant and that defendant had sexual intercourse with Vic by force and against her will. ■
Defendant next contends that the State did not prove Vic was not his wife and that therefore he could not be found guilty of rape. However, there is no dispute that defendant and Vic met for the first time at the picnic shortly before the motorcycle trip into the woods where the sexual attacks occurred. Under the circumstances, there is an inference that defendant and Vic were not married, and defendant’s contention is without merit.
Defendant also argues that he was not proven guilty of the offense of unlawful restraint because the only evidence of detention arose as a result of other, differently motivated criminal conduct. However, the offense of unlawful restraint is often committed in conjunction with other offensеs but is punishable as a separate crime if the restraint is independent. (People v. Kuykendall (1982),
Defendant's final assignment of error is that he was denied a right to present a defense because he was prevented from calling a witness, Daniel Jasch, to testify. Jasch is “a close friend” of defendant.
We find no error committed by the trial court. A party cannot fail to advise the court until after proofs are closed that he has a remaining witness, and then сharge the court with committing error for not allowing the witness to testify. In such a situation the court has a right to assume that the party voluntarily chose to proceed to judgment without the testimony of the witness that was not disclosed to the court. Moreover, in the present case the supposed testimony of the witness would only corroborate defendant’s testimony on a noncritiea! fact. Additional evidence which merely corroborates testimony that was given on a noncritical fact is not a basis for granting a new trial.
Accordingly, the judgment is affirmed.
Affirmed.
WHITE, P.J., and FREEMAN, J., concur.