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People v. Everhart

AUGUST 28, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HERBERT F. EVERHART, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was convicted of the crime of taking indecent liberties with a child and was sentenced to a term of 4 to 8 years in the Illinois State Penitentiary.

The issues presented on appeal are (1) Whether the defendant was proven guilty beyond a reasonable doubt; and (2) Whether the trial court abused its discretion in receiving in evidence the defendant's prior conviction.

On Saturday, August 14, 1971, the complaining witness, Donna Marie Danek, 11 years old, was delivering newspapers for her girlfriend, Nancy Smith, who was on vacation. At approximately 4 P.M. she arrived at the home of the defendant, Herbert Everhart. Complainant was using a bicycle for transportation and was carrying the newspapers in a canvas bag around her neck. The bag was hanging down in front of her below her waistline. She placed a newspaper between the screen door and the wooden door of defendant's home and returned to her bicycle, 25 feet away on the sidewalk. The defendant, hearing someone at the screen door, opened the house door and saw the complaining witness at her bicycle. The defendant inquired about the regular newspaper girl, Nancy Smith, and the complainant began walking back toward the screen door.

The complaining witness testified she went into the defendant's home and he partially closed the front door. The defendant inquired if complainant liked boys and she said yes. He then inquired "Were you ever virginity [sic] before?" and she said no. Complainant also testified that the defendant then began feeling her breasts and between her legs on top of her clothing. She estimated this lasted 5 or 10 minutes but was not sure of the time. She further testified she was asked to kiss the defendant on the cheek before she left. Complainant did not cry or make any protest. There was no violence and she was not injured. She stated she went home immediately, one block away, and told her mother what happened. Mrs. Danek called the police, who arrived approximately 10 or 15 minutes later. The police took the complainant back to the defendant's house where she identified him. Complainant said she had a chart with the name and address of every person to whom she was to deliver newspapers, but she did not tell the police about it.

The defendant testified he was home on the day in question with his stepdaughter, Camille Powell. He heard a noise at the front screen door and when he opened the house door he saw the complaining witness about to get on her bicycle, 25 feet away on the sidewalk. He inquired "Where is my girl, Nancy?" and complainant said "Oh, she is on vacation. I am filling in for her right now." Defendant then asked "Oh, are you her sister?" and she said "No, I am just a girlfriend delivering papers for her." While she was talking the complainant walked toward the house to within approximately 15 feet from the screen door and then turned around and returned to her bicycle. She then left.

The defendant's stepdaughter, Camille Powell, testified she was at home with the defendant and in the bathroom putting on makeup with the door "ajar" at the time of the alleged incident. She was only 10 or 11 feet from the front door, and she heard the defendant say "Hello" and "Where is my girl, Nancy?" and "Tell her I said hi." The conversation lasted only a minute or two. Miss Powell testified she did not hear the defendant ask for a kiss on the cheek or anything along those lines. She did not see or hear the complainant enter the house.

In rebuttal, the State offered into evidence for impeachment purposes, a prior conviction of the defendant for the crime of taking indecent liberties with a child. The defendant had been sentenced to 3 to 15 years in the penitentiary in January, 1964, and was released in November, 1966. Defendant has not been in any trouble since his release. He has been married 4 1/2 years and has a grown stepdaughter living at home, owns his own home in Hickory Hills, and operates a television repair business. Defendant objected to the admission of the prior conviction into evidence on the ground that it in no way affected his credibility and only prejudiced the court against the defendant.

The trial court found the defendant guilty of taking indecent liberties with a child and sentenced him to 4 to 8 years in the Illinois State Penitentiary.

• 1, 2 The defendant first contends he was not proven guilty beyond a reasonable doubt. It is well established that a reviewing court will not disturb a conviction for indecent liberties with a child, where the defendant denies the charge, where there is either some corroboration of the testimony of the complaining witness or that testimony is otherwise clear and convincing. (People v. Falk (1970), 121 Ill. App.2d 1.) By either standard, the defendant in the instant case was not proven guilty beyond a reasonable doubt. The testimony of the complaining witness was not clear and convincing and there was no corroboration. Section 11-4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11-4) states:

"(a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:

(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both."

On the evidence presented in the case at bar it cannot be found that the defendant had any intent to arouse his own sexual desires or the desires of the complainant, with defendant's stepdaughter only a few feet away from the alleged incident. The evidence, at best, does not sufficiently establish the requisite intent.

The defendant was in his own home repairing a television set on the date in question. He denied having invited the complainant into his home. Complainant testified the defendant felt her breasts and between her legs, but on cross-examination stated the canvas bag in which she was carrying the newspapers was around her neck and hanging down in front of her below her waistline. It would, ...


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