APPEAL from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding.
MR. PRESIDING JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 3, 1972.
This is an appeal to review a judgment that convicted defendant of indecent liberties with a child. Trial was by jury. He was sentenced to serve four to eight years. Urging reversal or reversal and remand for a new trial, defendant advances seven substantive and procedural grounds. We review only his principal contention that the evidence did not prove him guilty beyond a reasonable doubt.
On August 31, 1968, Luz Hernandez, 17 years of age and single, lived on the third floor at 1205 North Spaulding in Chicago with her two children, both boys. The older was 3 years old; the younger was a 15-month old baby who, for the entire month of August, was suffering from a bad case of diarrhea. Miss Hernandez had known the defendant for about 10 months. He visited the Hernandez apartment and he was trusted with the care of the baby. The night of August 30, defendant slept on a sofa in the Hernandez home. He fed the baby at about 6:00 A.M., the morning of August 31, 1968.
At about 9:30 P.M. that evening, Miss Hernandez bathed the 15-month old baby and dressed him in a shirt and diaper. She put him in his crib, locked the apartment and went outside near a tavern to talk with friends. Defendant came out of the tavern, and asked Miss Hernandez if he could use the washroom in her apartment. Miss Hernandez consented and gave defendant the key. After defendant was in the apartment ten or fifteen minutes, Miss Hernandez heard the baby scream. She ran upstairs and knocked on the apartment door. There was no answer. Some five minutes or so later, defendant opened the door. Miss Hernandez saw "[h]e had the baby in his right hand * * * he zippered his pants and then he threw the baby to the side of the wall." The baby "[h]ad bowel over him. On his head, face and behind." Miss Hernandez said that the baby had blood on "his behind" and he was dressed only in a little shirt. In her testimony, Miss Hernandez said that the following Monday she found the baby's diaper "[b]ehind the door in my bedroom * * * behind the clothes hamper * * * it was clean." She threw it away.
When she first saw him with the baby, Miss Hernandez noticed that defendant had "[b]owel movement * * * all over his pants, in front of his pants." The bedspread and sheet on Miss Hernandez' bed were stained. On the sofa was a handkerchief. Signs of the child's "bowel movement" were on the floor in the living room and bedroom. According to Miss Hernandez, there were blood spots on the bedroom floor. She said that because "Mr. Garcia was too drunk to run away," she pushed him onto a sofa. A short time later, her "boyfriend," Pedro Cruz, came into the apartment. The police were called. Defendant was arrested. The baby boy was taken to a hospital where, at about midnight, he was examined by Dr. W. John Kenfield. This examination revealed "a small * * * superficial tear" in the anus or rectum. The doctor had "[s]een tears of this nature before in children." Near the tear was a small amount of bright red bleeding. Dr. Kenfield said he did not know the cause of the superficial tear.
The baby remained a patient at the hospital. On September 1, 1968, Dr. Alberto Guevara, the baby's doctor before August 31, examined him and saw the tear described by Dr. Kenfield. It was Dr. Guevara's opinion that an "extensive period of diarrhea" could have caused the tear in the baby's anus. On redirect examination, Dr. Guevara said that "insertion of some foreign object from the outside" could have caused the injury. Dr. Gun, who testified for the prosecution, also examined the child and saw the tear described by the other doctors. His attention was called to Dr. Guevara's testimony that the tear could have been "caused by an extended period of diarrhea." Dr. Gun answered, "It's possible."
After Dr. Gun, and as its last witness, the State called Mrs. Caporusso, a microanalyst who testified that to determine the presence or absence of blood or spermatazoa, she examined the bedspread and sheet from Miss Hernandez' bed, the handkerchief found on the sofa, defendant's trousers and his shorts. No spermatazoa was found on any of the items. The two red spots on the bedsheet were not blood. On all of the items were fecal matter that caused stains. On the fly of defendant's trousers and shorts were stains which contained blood.
Defendant then testified as the only witness for defense. He told the jury that on the evening of August 31, 1968 he obtained permission to use the washroom in Miss Hernandez' apartment. He found the window of the apartment open and while in there, the baby began to cry. He noticed the child was without a diaper. He thought the baby was cold and he picked him up to put a diaper on him. While trying to do so, the baby had a bowel movement that spread over "[m]y clothes. All over my clothes." Defendant said he then put the child on the bed to look for something with which to clean his clothes. It was then, he said, that someone knocked on the door and "Miss Lucy came in." When defendant was cross-examined, he admitted that when he went into the apartment, he locked the door. In the trial court, in his direct and cross-examination, defendant denied he did anything wrong with or to the 15-month old baby. In this court, he contends that the evidence did not prove his guilt beyond a reasonable doubt. This contention requires us to decide whether defendant's conviction has support in the evidence as required by law.
• 1-3 In Count I of the indictment, defendant was charged with indecent liberties with a child in that he, with the intent to arouse and satisfy his and the child's sexual desires, lewdly fondled and touched the child. In Count II, defendant was charged with deviate sexual assault in that he "[b]y the use of force and threat of force, compelled [the child] to submit to an act of deviate sexual assault by inserting his penis into the rectum of said [child] * * *." At the close of the State's case, defendant moved for a directed verdict. This motion questioned the sufficiency of the evidence to sustain a conviction under the applicable statutes. (People v. Chiafreddo, 381 Ill. 214, 218, 44 N.E.2d 888.) After hearing arguments, the trial judge overruled the motion as to Count I but sustained it as to Count II. This ruling, in effect, removed the case in that count from the rules relating to jury cases and made applicable the rules of non-jury trials. (Larson v. Harris, 77 Ill. App.2d 430, 434, 222 N.E.2d 566.) It is well settled that a motion to find for a defendant at the close of a plaintiff's case involves only a question of law. Allowance of the motion does not adjudicate any issue of fact. (Anderson v. Board of Education, 390 Ill. 412, 61 N.E.2d 562; Malman v. Village of Lincolnwood, 61 Ill. App.2d 55, 208 N.E.2d 884.) For these reasons, the trial judge's ruling can only be construed as a legal determination that defendant, on the evidence presented, was entitled to an acquittal of the charge that he committed deviate sexual assault on the child by inserting his penis into the child's rectum.
In People v. Haran, 27 Ill.2d 229, 188 N.E.2d 707, defendant was charged with rape, statutory rape, and with crime against nature. A 15-year old girl was involved. He was first tried for rape and statutory rape. He was acquitted of both charges. Fourteen months later he was tried for the crime against nature which allegedly occurred at the same time. In the latter trial, the State was permitted to prove that defendant had intercourse with the girl. Defendant was convicted. In reversing his conviction, the Supreme Court held that when defendant was acquitted of statutory rape, it was determined that on the occasion alleged, he did not have intercourse with the girl. Therefore, the State could not rely on the alleged sexual intercourse to prove related crime against nature.
• 4 When we apply Haran to this case, we notice that the actus reus of the alleged deviate sexual assault consisted of two elements: force and insertion. However, the peculiar facts of this case made proof of force unnecessary. The 15-month old baby was incapable, legally, physically or in any manner of consenting to or resisting an act of deviate sexual assault. Therefore, force was immaterial. The only proof required to support a conviction under Count II was evidence beyond a reasonable doubt that defendant inserted his penis into the rectum of the child. When defendant was acquitted of deviate sexual assault, it was determined that he did not insert his penis into the child's rectum. (People v. Haran, supra.) For this reason, the State is precluded in this appeal from claiming the defendant inserted his penis into the child's rectum, just as it could not prove this fact in another trial after the acquittal. (Compare State v. Cormier (1966), 46 N.J. 494, 218 A.2d 138; and see Anno. 9 A.L.R.3d 203, 233 (1966).) To allow otherwise would subject this conviction to a serious constitutional question. See Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.
• 5 It follows, then, that defendant's acquittal of deviate sexual assault operated to exclude certain evidence from the jury's consideration of the remaining charge. For example, it excluded any evidence which could only prove that defendant inserted his penis into the child's rectum. Among the excluded evidence was the medical testimony that the tear in the child's anus could have been caused by insertion of some foreign object. This testimony was relevant only to the ultimate fact of insertion, not to the charge of indecent liberties. Therefore, the jury could not have legally included it in deliberating the indecent liberties charge.
• 6 As to this charge, it was alleged that defendant "[w]ith the intent to arouse and satisfy the sexual desires of himself and [the child], lewdly fondled and touched said [child] * * *." This accusation is one easily made, hard to prove and harder to be defended by the party accused. (People v. Hinton, 14 Ill.2d 424, 428, 152 N.E.2d 830; People v. Falk, 121 Ill. App.2d 1, 257 N.E.2d 175.) Where, as here, the evidence is entirely circumstantial, it is essential to a conviction that the facts proved be consistent with defendant's guilt and inconsistent, on any ...