Third Division
Filed: January 14, 2004

No. 1-01-1120

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

Following a bench trial, the defendant, Long Nhu Le, was convicted of criminal sexual assaultand sentenced to a prison term of six years. On appeal, the defendant contends that: (1) his dueprocess rights were violated when the trial court failed to allow an expert of his own choosing toexamine the victim to determine whether she suffered from post-traumatic stress syndrome; and (2)the State failed to prove him guilty beyond a reasonable doubt. For the reasons which follow, weaffirm.

Prior to trial, the defendant was notified that the State intended to present expert testimonythat the victim, Fausta V. (F.V.), suffered from post-traumatic stress syndrome. In response, thedefendant filed a motion for the appointment of an expert, wherein he alleged that he was indigentand seeking the services of a psychiatrist to examine F.V. as to the issue of post-traumatic stresssyndrome. The trial court granted the defendant's motion and appointed a psychologist from thePsychiatric Institute of the Circuit Court of Cook County (hereinafter "Forensic Services Clinic") toexamine F.V. Following the examination, defense counsel argued that the psychologist had failed tofollow certain protocol with respect to a psychological test performed on F.V., and had alsoimproperly communicated with the State. To remedy the situation, the trial court appointed a secondpsychologist from the Forensic Services Clinic to examine F.V.

The State presented the following evidence at trial.

F.V. testified that, in January 1997, she was working as a cleaning person at an office buildinglocated in downtown Chicago. F.V. stated that the defendant worked as a security guard in the samebuilding. According to F.V., on January 18, 1997, she was working the night shift and hadencountered the defendant on numerous occasions that evening. At approximately 11:40 p.m., thedefendant asked her if she had finished cleaning the 43^rd floor. F.V. replied "no", and proceeded upto the 43^rd floor. The defendant left to respond to a call on his radio.

F.V. testified that she was vacuuming on the 43^rd floor when she suddenly saw the defendant,who grabbed her by the hair and pushed her into an office. F.V. stated that she yelled "no, Lee", andattempted to get away from him, but was unable to do so because he was "very aggressive". According to F.V., the defendant closed the office door and pinned her up against a wall. Thedefendant then placed his hands over F.V.'s breast and started kissing her. During this time, F.V.continued to tell the defendant "no" and attempted to get him off of her. F.V. stated that thedefendant tore her bra as the two of them struggled. The defendant then attempted to push F.V. ontoa nearby desk. F.V., however, continued resisting and telling the defendant "no". F.V. stated thatthe defendant pushed her and eventually threw her onto the floor.

According to F.V., while on the floor, the defendant got on top of her and attempted to takeher pants off. F.V. again attempted to escape from the defendant's grasp, but to no avail. Thedefendant then rolled F.V.'s pants down to her ankles and had sexual intercourse with her. Shetestified that, when the defendant was finished, he got off of her, and said that he was "sorry" and thathe loved her. F.V. stated that she ran out of the office toward the elevator. Shortly thereafter, theelevator arrived and her boss, Zenon Zandecki, who was standing inside, asked her what hadhappened. She first waited for the defendant to leave the floor and then told Zandecki that thedefendant pulled her by the hair into a vacant office and then had sex with her. F.V. stated that shealso spoke to Eric Riggins, the security supervisor, about the incident. F.V. was subsequently takento the hospital, where she submitted to a physical examination.

F.V. was questioned at length about her interactions with the defendant prior to the incident. F.V. described an incident which occurred approximately eight months earlier when the defendantgrabbed and kissed her at work. F.V. further testified that the defendant had kissed her on anotheroccasion while giving her a ride home.

Zandecki testified that, around midnight, he went up to the 43^rd floor and saw F.V. waitingfor the elevator. According to Zandecki, F.V. stated that she needed to talk to him. He stated thatshe appeared nervous and afraid, and her hands were "shaking" at the time. F.V. asked Zandecki foran assurance that he was not going to fire her. She then told Zandecki that the defendant grabbedher by the hair, forced her into a vacant office, and had sexual intercourse with her. Zandecki testifiedthat he directed her to go to the 38^th floor and wait for him. During this time, Zandecki reported theincident to Riggins. Zandecki testified that the police later arrived at the scene. According toZandecki, F.V. appeared to be crying as she was talking to one of the policemen.

On cross-examination, Zandecki admitted that, a few years earlier, F.V. had received twocomplaints about her job performance. Zandecki also testified that, three years prior to the incident,F.V. was on probation for absenteeism. He stated, however, that F.V. was not on probation whenthe incident took place. Finally, Zandecki acknowledged that an employee could be disciplined forhaving sexual relations at the workplace.

Riggins testified that he spoke to Zandecki about the incident and then went to talk to F.V. Riggins stated that F.V. looked "nervous, distraught, [and] upset" and appeared to be crying. F.V.showed Riggins a bruise she had sustained on her breast. On cross-examination, Rigginsacknowledged that he did not know what caused the bruise. Riggins stated that, when he observedthe bruise, he also noticed that one of F.V.'s bra straps was detached. He also observed a smallscratch on F.V.'s hand. Riggins testified that when F.V. was talking to the police about the incident,she appeared nervous and her lips were "trembling".

The State presented the testimony of Dr. Andioco Barron, who was qualified as an expert inthe field of psychiatry. Dr. Barron testified that he first examined F.V. on February 11, 1997. Dr.Barron stated that F.V. was having anxiety, depression, and nightmares after the incident. Basedupon a reasonable degree of medical and psychiatric certainty, Dr. Barron opined that F.V. wassuffering from post-traumatic stress syndrome. On cross-examination, Dr. Barron admitted that hisopinion was based upon his personal observations of F.V., and not on her prior medical records. Healso acknowledged that he did not know if F.V. suffered from any symptoms of depression beforethe incident. Finally, Dr. Barron testified that he did not have F.V. complete any tests to determinewhether she was "malingering."

The State rested, and the defendant testified on his own behalf. His account of whattranspired on January 18, 1997, differed significantly from F.V.'s version of events. According tothe defendant, around 11:30 p.m., he went up to the 43^rd floor to help F.V. turn off the lights. Thedefendant stated that F.V. was cleaning an office at the time. He began massaging her back, as hehad done in the past. According to the defendant, "one thing led *** to another" and the two of thembegan kissing and holding each other. The defendant testified that F.V. opened his zipper and beganmassaging his penis, as he massaged her breast. The defendant stated that F.V. then pulled him downon top of her, pulled down her pants, and initiated sexual intercourse with him. After they finished,F.V. put her pants back on and left the office.

The defendant denied using any force against F.V. or threatening her in any way. He alsodenied ripping her bra. The defendant stated that F.V. never said "no" during the incident or statedthat she did not want to have sex with him. Finally, the defendant testified that he and F.V. hadsexual intercourse once before the incident. Following the defendant's testimony, defense counselrested.

The trial court found the defendant guilty of criminal sexual assault. In so doing, the courtspecifically found F.V.'s testimony to be "clear, unequivocal, without motivation, and unimpeachedin any significant way". The court further found that F.V.'s testimony was corroborated by thetestimony of Zandecki, Riggins, and Dr. Barron.

Thereafter, the defendant filed a motion for a new trial, arguing, inter alia, that the trial court'sfailure to appoint a private expert on his behalf deprived him of due process of the law, as he wasforced to use psychologists employed by the Forensic Clinical Services who did not meet the samestandard of psychologists available in the private field. The trial court denied his motion. Thedefendant was subsequently sentenced to a prison term of six years. He now appeals.

The defendant first contends that his due process rights were violated in that the trial court"failed to allow him to obtain an expert witness of his own choosing" for the purpose of assessingwhether F.V. suffered from post-traumatic stress syndrome. The defendant asserts that the trial courtappointed psychologists employed by the Forensic Clinical Services, both of whom providedsubstandard services. He maintains that, because Dr. Barron's testimony regarding post-traumaticstress syndrome was the "deciding factor" in his conviction, the only way to rebut his testimony wasby having the services of an "independent, qualified expert."

Section 115-7.2 of the Code provides that "[i]n a prosecution for an illegal sexual actperpetrated upon a victim, *** testimony by an expert, qualified by the court relating to anyrecognized and accepted form on post-traumatic stress syndrome shall be admissible as evidence." 725 ILCS 5/115-7.2 (West 2000). In People v. Wheeler, 151 Ill. 2d 298, 602 N.E.2d 826 (1992),our supreme court held that the State may admit an examining expert's testimony that the victimsuffered post-traumatic stress syndrome only if the victim consents to an examination by thedefendant's expert. Our supreme court's holding is geared toward protecting a defendant's right toa fundamentally fair trial which includes the right to present witnesses on his own behalf. Wheeler,151 Ill. 2d at 305.

The record shows that, prior to trial, the State indicated that it was intending to present experttestimony that F.V. suffered from post-traumatic stress syndrome. In response, the defendant fileda motion for the appointment of an expert, wherein he alleged that he was indigent and was seekingthe "services of a psychiatrist to offer an opinion on post-traumatic stress of [the] complainingwitness."

At the May 6, 1999, hearing held on the defendant's motion, the parties expressed theirunderstanding of the court's holding in Wheeler, that the State may only present testimony of post-traumatic stress syndrome if the defendant is allowed to have an expert examine the victim. After theState indicated that such evidence was crucial to its case, the trial court appointed a professional fromthe Forensic Clinical Services to evaluate F.V. for any symptoms of post-traumatic stress syndrome. The court ordered defense counsel to draft an order to that effect, and the matter was continued toMay 11, 1999. Following a hearing on that date, the trial court entered a written order granting thedefendant's motion for the appointment of an expert.

Pursuant to the trial court's order, Dr. Paul Fauteck, a licensed clinical psychologist from theForensic Clinical Services examined F.V., and opined that she was suffering from symptoms that wereconsistent with post-traumatic stress syndrome. On August 26, 1999, defense counsel argued to thecourt that Dr. Fauteck could not be presented as an expert in the defendant's case because he failedto follow certain protocols with respect to an "MMPI" test completed by F.V. According to defensecounsel, Dr. Fauteck allowed F.V. to take the test papers outside of the building where it was beingadministered. Defense counsel further argued that Dr. Fauteck had improperly communicated withthe State before the test was administered. In response, the trial court ordered Dr. Stafford Henryfrom the Forensic Clinical Services to perform a second evaluation on F.V.

Before the defendant testified in his case, a hearing was held on November 28, 2000, withrespect to Dr. Henry's examination of F.V. Defense counsel first noted that the court file containingthe court orders with respect to Dr. Henry was missing. Defense counsel attempted to recount theprocedural posture of the case and stated the following:

"The history of this matter is that Dr. Henry was appointed as a consultant tothe defense. When you denied our motion for an independent person who the Courtwould pay, due to the indigency of the defendant. The Court's compromise was thatthe psychiatric division of the court would be used to make a determination inconnection with a witness concerning the question of post[-]traumatic stresssyndrome concerning the witness."

Defense counsel argued that, after reviewing Dr. Henry's report, he decided not to add him to thewitness list. Accordingly, defense counsel argued that the State should not be allowed to use Dr.Henry's report in its case. Defense counsel made an oral motion in limine to bar the State frompresenting the testimony of Dr. Henry, which the trial court granted.

Having set forth the facts surrounding the defendant's claim of error, we must next addressthe State's argument that the record on appeal does not support the defendant's argument that thetrial court denied his request for an expert of his own choosing. We first note that the defendant hasfailed to include in the record on appeal the transcripts from the May 6, 1999, and May 11, 1999,hearings held on his motion for the appointment of an expert. The State, however, has attached thesetranscripts to its brief before this court. There is no indication in these transcripts or in the court'sMay 11, 1999, order granting the defendant's motion for expert services, that the court denied thedefendant the opportunity to choose a particular expert or that he sought a specific expert rather thanmerely requesting the appointment of one. In arguing that the trial court denied his request for theappointment of an expert of his own choosing, the defendant points to the November 28, 2000,transcript of proceedings wherein defense counsel reminded the court of the circumstancessurrounding Dr. Henry's appointment. Defense counsel stated that the court had "previously deniedour motion for an independent person who the Court would pay [for], due to the indigency of thedefendant." Other than defense counsel's representation of the facts, the record on appeal containsno indication that the defendant actually requested a specific expert of his own choosing to examineF.V. with respect to post-traumatic stress syndrome.

As the appellant, the defendant has the burden to present a sufficiently complete record tosupport a claim of error, and any doubts that arise from the incompleteness of the record will beresolved against the defendant. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958 (1984);People v. Fair, 193 Ill. 2d 256, 264, 738 N.E.2d 500 (2000). Based on the record before us, thedefendant has failed to support his assertion that he requested an expert of his own choosing and thatthe trial court denied his request. To the contrary, we note that the transcript of the May 6, 1999,hearing shows that, when the trial court decided to appoint a County-employed psychiatrist toevaluate F.V., defense counsel expressed his agreement by stating:

"[I]f the Court is more comfortable with the Psychiatric Institute, if the courtfeels that that would be the best way to go, you know, I am willing to do anything tomake sure there is a level playing field. If the Court has any psychiatrist or doctor inmind, then that should be the Court - who the Court should have to do it, becausethen [sic] court is sure, one, that it will be done the way the Court wants it done; anda report will be made to your Honor."

Even assuming arguendo that the trial court had in fact denied the defendant's request for anexpert of his own choosing, we would still find no error. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L. Ed. 2d 53 (1985), the Supreme Court held that, when an indigent defendant's sanityat the time of the offense is likely to be a significant factor at trial, the State must, at a minimum,assure the defendant access to a competent psychiatrist who will conduct an appropriate examinationand assist in the evaluation, preparation, and presentation of the defense. However, the Court wascareful to qualify its holding by stating: "This is not to say, of course, that the indigent defendant hasa constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist ***." Ake, 470U.S. at 83. We believe that the Supreme Court's reasoning in Ake is equally applicable to the factsin this case.

We next address the defendant's argument that he was denied a fair trial because both of theappointed psychologists rendered substandard services which prevented him from rebutting thetestimony of the State's expert at trial.

The record shows that defense counsel complained that Dr. Fauteck rendered incompetentservices because he improperly communicated with the State and allowed F.V. to take certain testpapers outside of the building where it was being administered. The trial court remedied defensecounsel's complaint by appointing Dr. Henry to do a second evaluation of F.V. The defendantmaintains that Dr. Henry's services were similarly substandard because he gave the State a copy ofhis report without prior approval or knowledge by the defense.

The defendant's argument is based upon the report of proceedings from the November 28,2000, hearing. Defense counsel argued at the hearing that Dr. Henry was appointed to examine F.V.for the purpose of determining whether the defense was going to offer evidence at trial to rebut theState's evidence as to post-traumatic stress syndrome. Defense counsel asserted that, after reviewingDr. Henry's report, he decided not to add him to the witness list, and stated that Dr. Henry remainedin the "consulting capacity" only. Defense counsel argued that, although the State had received Dr.Henry's report with respect to F.V., it should not be allowed to use it because defense counseldecided not to call Dr. Henry to testify at trial.

We find the defendant's citation to the November 28, 2000, hearing in support of his argumentthat Dr. Henry rendered ineffective services by providing the State with a copy of his report to berather disingenuous. The only purpose of the hearing was for defense counsel to make a motion inlimine to bar the State from presenting the testimony of Dr. Henry, which the trial court granted. Atno time during the hearing did defense counsel indicate to the court that Dr. Henry's services weresomehow inadequate. In fact, the record shows that, in making his argument with respect to Dr.Henry's consultation report, defense counsel clarified, "my objection is not that he is not an excellentdoctor or qualified psychiatrist." Based on the record before us, we are unpersuaded by thedefendant's argument as to the effectiveness of Dr. Henry's services.

The defendant next contends that the State failed to prove him guilty of sexual criminal assaultbeyond a reasonable doubt. In making his argument, the defendant does not dispute that he and F.V.engaged in sexual intercourse. Rather, he asserts that the evidence was insufficient to show that thesexual intercourse took place by force and against F.V.'s will because there was no physical evidenceto corroborate her testimony. The defendant further asserts that F.V. was not a credible witnessbecause she had an incentive to falsify her testimony.

A conviction will not be set aside for insufficient evidence unless the evidence is so improbableor unsatisfactory as to give rise to a reasonable doubt of guilt. People v. Taylor, 186 Ill. 2d 439, 445,712 N.E.2d 326 (1999). In considering a defendant's challenge to the sufficiency of the evidence, therelevant question is whether, after viewing all of the evidence in the light most favorable to theprosecution, any rational trier of fact could have found the elements of the crime beyond a reasonabledoubt. People v. Brooks, 187 Ill. 2d 91, 132, 718 N.E.2d 88 (1999). The determinations as to theweight to be given to the testimony of the witnesses, their credibility, and the reasonable inferencesto be drawn from the evidence are matters within the province of the trier of fact. People v. Cooper,194 Ill. 2d 419, 431, 743 N.E.2d 32 (2000).

Pursuant to section 12-13(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12-13(a)(1) (West2000)), a person commits criminal sexual assault when he "commits an act of sexual penetration bythe use of force or threat of force". There is no definite standard setting the amount of force neededto show that the parties engaged in nonconsensual intercourse, and each case must be considered onits own facts. People v. Thomas, 96 Ill. App. 3d 443, 450, 421 N.E.2d 357 (1981).

Although the defendant cites the proper standard of review for this claim, he relies on Peoplev. Bruno, 110 Ill. App. 2d 219, 249 N.E.2d 252 (1969), in arguing that there was insufficient physicalevidence to corroborate F.V.'s testimony. In Bruno, the court reversed the defendant's convictionsfor rape and deviate sexual assault based on the fact that there was no medical or physical evidencecorroborating the victim's claim that the defendant threw her down on the couch, choked her, andthen forced his way to have sexual intercourse with her. Bruno, 110 Ill. App. 2d at 222. However,this court subsequently held in People v. Hermosillo, 256 Ill. App. 3d 1020, 628 N.E.2d 413 (1993),that there is no longer a requirement that a victim's testimony be corroborated by physical or medicalevidence in order to sustain a conviction for criminal sexual assault. As the court explained in Peoplev. Roy, 201 Ill. App. 3d 166, 185, 558 N.E.2d 1208 (1990), "The testimony of no other category ofcrime victim is held to be automatically suspect or to require additional proof beyond the statutoryrequirements. The time has passed to rid the law of this sexist anachronism." As a consequence, wereject the defendant's reliance on Bruno.

Here, F.V. testified that the defendant grabbed her by the hair and pushed her into an office. She further stated that the defendant pinned her up against the wall and that she tried to get away. According to F.V., the defendant tore her bra as the two of them struggled. F.V. further stated thatthe defendant pushed her, threw her onto the floor, and had sexual intercourse with her. Rigginstestified that F.V. showed him a bruise on her breast. The trial court, as the trier of fact, chose tobelieve F.V.'s testimony, specifically finding it to be clear, unequivocal, and unimpeached in anysignificant way. Based on the evidence, we conclude that a rational trier of fact could have found thatthe sexual intercourse took place by force and against F.V.'s will. See People v. Morrow, 104 Ill.App. 3d 995, 433 N.E.2d 985 (1982) (unequivocal testimony of complainants was sufficient tosustain conviction in rape prosecution, even without physical evidence to corroborate their assertionwith respect to the defendant's use of force).

The defendant further argues that F.V. was not a credible witness because she had anincentive to falsely accuse the defendant. He points to the fact that, when F.V. saw Zandecki afterthe incident, she immediately asked him if he was going to fire her and then told him what hadhappened. The defendant further asserts that there was evidence that F.V. was a substandardemployee who was at risk of losing her job. The defendant's argument in this regard, however, againinvolves a matter for the trial court to consider in evaluating the credibility of the witnesses. SeePeople v. Bowen, 241 Ill. App. 3d 608, 620, 609 N.E.2d 346 (1993). The trial court in this casefound F.V.'s testimony to be credible and "without motivation." Accordingly, we reject thedefendant's credibility argument in this respect.

Viewing the evidence in the light most favorable to the prosecution, we conclude that thedefendant was convicted beyond a reasonable doubt of criminal sexual assault.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

HALL and KARNEZIS, JJ., concur.