Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. L.L. RECHENMACHER, Judge, presiding.
Reversed and remanded.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 23, 1969.
The defendant appeals from his conviction on three counts of an indictment charging indecent liberties with a child, in violation of section 11-4 of the Criminal Code (Ill Rev Stats 1965, c 38, § 11-4).
The defendant is nineteen years of age. He and four other young men, Patrick Gibson, Michael Gibson, James Owen and Bill Levy, all over the age of seventeen, picked up two fourteen-year-old high school girls in Lisle, Illinois, and took them by automobile to the home of the Gibson brothers in Villa Park. There, Patrick Gibson had sexual intercourse with each of the girls, and the appellant Chellew engaged in an act of deviate sexual conduct with one of them. Under the statute, indecent liberties is defined as any act of sexual intercourse or any act of deviate sexual conduct committed by a person over the age of seventeen with a child under the age of sixteen.
There was substantial evidence adduced to show that Chellew not only engaged in the act of deviate sexual conduct with one of the girls, but that he aided and abetted Patrick Gibson in the acts of sexual intercourse committed by Gibson. For instance, the uncontradicted evidence indicates that the defendant carried one of the girls into a room where Gibson was, that he restrained one of the girls when she attempted to go to the other girl's assistance at one point, that he threatened the girls with violence if they told anyone what had happened, and that he had participated in the decision which was made to pick up the girls in the first place. In short, the evidence was sufficient to show that Chellew participated fully in the events which led to and facilitated the acts of intercourse engaged in by Gibson.
Defendant's first point concerns the sufficiency of the indictment. Count I charged the defendant, both Gibsons, Owen and Levy with indecent liberties in that they "performed an act of sexual intercourse" with one of the girls. Count II charged the same persons with indecent liberties in that they performed an act of deviate sexual conduct with the same girl. Count III charged the same defendants with indecent liberties in that they performed an act of sexual intercourse with the other girl. Defendant's argument is that Counts I and III of the indictment are defective as to him, in that he was charged as a principal rather than as an aider and abettor. There is no merit to this point. People v. Touhy, 31 Ill.2d 236, 201 N.E.2d 425 (1964).
Defendant's next point is that there was not enough "corroboration" of the testimony of the two fourteen-year-old girls to support his conviction. He argues that in certain respects the testimony of the girls was implausible and inconsistent. The "corroboration" of their testimony was furnished by the co-defendant James Owen, who testified for the State. In general, his version of the matter was the same as that given by the two girls.
There is nothing so implausible or inconsistent about any of the evidence that we can say, as a matter of law, that there is a reasonable doubt of the defendant's guilt. The weight of the evidence was for the jury to determine, and our review of the record leads us to the conclusion that the evidence was sufficient to support the verdict.
Defendant's next point is that his sentence of 9 to 14 years is disproportionate to the sentence of 3 to 4 years imposed upon the co-defendant Patrick Gibson, who pleaded guilty. Defendant argues that he was penalized for going to trial, inasmuch as he received a sentence three times as long as that imposed upon Gibson who, according to defendant, was the "prime mover in the entire occurrence."
The statute provides for a penalty of from 4 to 20 years. It appears from the record that, at the time of the offense, the defendant was on parole from the penitentiary, having previously been convicted of the crime of burglary and having served one year of a one to three year sentence in the penitentiary. Insofar as this record shows, Patrick Gibson had no previous criminal record. Therefore, this is one difference which would justify a difference in sentencing. Secondly, we do not believe the record supports the conclusion that defendant was substantially less culpable than Patrick Gibson. While Gibson had intercourse with each of the girls, defendant facilitated those acts and committed an act of deviate sexual conduct on his own. Furthermore, he threatened the girls with violence, and, according to the evidence, stated that one of their brothers would be killed if they divulged what had happened.
We are also impressed by the fact that Michael Gibson, who went to trial along with appellant, and whose participation had been solely that of an aider and abettor, was given a sentence of 7 to 14 years. It appeared that Michael Gibson was also on parole for burglary at the time of this offense. Thus, it appears to us that, as between the appellant and Michael Gibson, the sentences were proportionate to their participation in the offense, and that, as between Michael Gibson and appellant on the one hand, and Patrick Gibson on the other, the court could properly distinguish on the basis of their previous records. We conclude that there was no error in the sentencing of defendant.
Defendant's final point is that the prosecution improperly commented upon his failure to testify, in violation of section 155-1 of the Criminal Code (Ill Rev Stats 1965, c 38, § 155-1) which provides that a defendant's "neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect."
The comment in question was made by the Assistant State's Attorney in his rebuttal argument, after counsel for the appellant and the co-defendant Michael Gibson had argued that the defendants could reasonably have believed that the girls were over sixteen years of age. This issue arose because the indecent liberties statute provides that it shall be an affirmative defense that "the accused reasonably believed the child was of the age of sixteen or upwards at the time of the act giving rise to the charge." (Ill Rev Stats 1965, c 38, § 11-4(b)(1).) The defense had offered into evidence certain photographs which had been taken of the two girls at their school prior to the date of the offense. Although these pictures are not a part of the record before us, we gather from the record we do have that the girls, at least in the view of the defense attorneys, could have been mistaken for sixteen from their appearance in the pictures. At the trial, on the other hand, it appears that the girls were dressed and made up in a way that was more consistent with their actual age of fourteen. There was considerable cross-examination by the defense attorneys concerning the fact that, at the time of the offense, the girls were wearing makeup, silk stockings, and the like, whereas, at the trial, they were not.
The incident in question, which occurred during the Assistant State's Attorney's rebuttal ...