APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. FRANCIS J. DELANEY, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 25, 1973.
Following a bench trial in Cook County circuit court, defendant Richard Mueller was convicted of deviate sexual assault and burglary and sentenced to concurrent terms of imprisonment for 2 to 10 years and 1 to 5 years respectively. The Appellate Court for the First District affirmed (131 Ill. App.2d 10), and we granted leave to appeal.
Defendant argues that the State failed to prove the element of force essential to the crime of deviate sexual assault; that certain of the testimony received was inadmissible hearsay; that he was denied his right to counsel during an out-of-court identification procedure; and that his in-court identification by the prosecutrix had no basis independent of a suggestive pretrial confrontation.
In the early morning of July 19, 1967, sisters Nancy and Cindy Lemke were asleep in their bedroom in the Lemke home on South Harding Avenue in Chicago. The two girls shared the lower bunk of a double-bunk bed; also sleeping in the children's bedroom were an older brother on the upper bunk and a younger sister on a separate single bed. Sometime in the pre-dawn hours, Cindy, six years of age, awoke and saw the defendant pass the door of their bedroom as he went from the kitchen to the dining room; Nancy, aged seven, was asleep. A short while later, the defendant entered the children's bedroom and awakened Nancy; he pulled down her panties, fondled her, and then performed an oral sex act upon her. The defendant was in the bedroom for about ten minutes; during the occurrence Cindy was awake and sitting up in bed next to Nancy. After defendant left, Nancy and Cindy went to the door of their bedroom and peeked into the kitchen to see if he was still there. They saw that defendant had gone; they also observed their father's trousers on the kitchen floor and his wallet lying on the kitchen table. The girls went back to sleep, later reporting the incident to their parents when the family arose at about seven o'clock.
On entering the kitchen that morning the girls' parents discovered the outer rear door to their home standing open, as was a kitchen window; they also found that cash had been taken from two wallets and that a wristwatch and electric shaver were missing. After talking with Nancy and Cindy, their parents summoned the police. Shortly after interviewing the Lemke family, police returned with defendant, who was picked up at his residence several doors away. Nancy identified him as the person who had entered the bedroom earlier that morning. Both Nancy and Cindy were acquainted with defendant, whom they called "Dickie," and were friends of his younger sister. Defendant, then 18, had been employed by the girls' mother to baby-sit with them on previous occasions.
Defendant testified in his own behalf that he had been driven home from his job as a janitor by his employer, Robert Velasquez, and that he had arrived at his Harding Avenue residence between 5:00 and 5:30 A.M. He denied having been in the Lemke home at any time that morning.
Defendant was convicted under section 11-3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 11-3(a)), which provides:
"Sec. 11-3. Deviate Sexual Assault. (a) Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault."
"Deviate sexual conduct" is defined in the preceding section of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, par. 11-2), thusly:
"Sec. 11-2. Deviate Sexual Conduct. `Deviate sexual conduct', for the purpose of this Article, means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another."
Defendant argues that there has been no evidence introduced tending to prove either "force or threat of force," as required by the statute. To this contention the State responds that because of the great disparity in physical size and age between defendant and Nancy Lemke that a threat of force was implicit in his actions. The State stresses that the victim's age made her legally incapable of consent, citing the committee comments accompanying section 11-3: "Thus, protection of everyone from aggression, protection of children from abuse of their immaturity, and the protection of the public from open affronts to generally accepted standards of behavior provide the basis adopted for framing the code provisions in this area." (State's emphasis.) (S.H.A., ch. 38, par. 11-3, p. 369.) However, a more complete citation of these comments demonstrates that they are addressed generally to the several Criminal Code sections dealing with deviate sexual conduct and not to section 11-3 in particular. The material immediately preceding the quoted passage outlines the statutory scheme concerned with deviate sexual activity: "The three approaches to deviate sexual conduct are generally as follows: First, compelling another to engage in a deviate sexual act is, as in rape, a unique kind of battery and as such is deserving of criminal punishment (sec. 11-3). Second, similar conduct involving a child is likewise proscribed on the same grounds as are other acts which sexually victimize the immature (secs. 11-4 and 11-5). Third, deviate sexual acts, and certain acts preliminary thereto, performed in such a place that they have an immediate and disturbing impact upon the public generally, are proscribed (sec. 11-9)." (P. 369.) The comprehensive plan devised by the legislature to proscribe various forms of aberrant sexual conduct reserves only to those situations involving actual or threatened force imposition of a strict penalty without provision for affirmative defense. This is in clear contrast to those sections providing either lessened penalty or particular affirmative defenses, which sections are based on a nonviolent victimization of the young. The evidence presented in this case supports neither a finding of actual force nor threat of force; nor does testimony of the complaining witness establish the fear or coercion suggested by the State. In the absence of such proof, a conviction under section 11-3 cannot stand, and we accordingly reverse the conviction for deviate sexual assault.
The remaining burglary conviction necessitates consideration of defendant's other allegations of error. He complains of certain testimony at trial which he asserts was prejudicial hearsay. On cross-examination by defense counsel, Cindy Lemke responded to the following question:
"Q. A top floor upstairs? Now, what happened after Dickie left? What did you do?
A. I got up. My dad got up and Nancy told my dad that Dickie was in our bedroom, and my dad said, `Maybe we've been robbed.'"
Counsel made no motion to strike the answer and may not now complain. (People v. Henry (1954), 3 Ill.2d 609, 614.) Defendant contends that the following exchange on direct examination between counsel for the State and Nancy Lemke was likewise hearsay:
"Q. Did you talk to your parents about this, the next day?
Again no objection or motion to strike was made by the defense and we will not consider whether it constitutes an ...