APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Karl Plewka, 17 years of age, and Reginald Blakemore, 20, were indicted for the rape of, indecent liberties with and contributing to the sexual delinquency of a 15-year-old girl. (Ill. Rev. Stat. 1969, ch. 38, pars. 11-1, 11-4, 11-5.) They were tried without a jury, found not guilty of rape but convicted of indecent liberties and contributing to sexual delinquency. Plewka was sentenced to 4 to 8 years and Blakemore to 5 to 12 years in the penitentiary. In a consolidated appeal, both defendants contend that they reasonably believed that the complaining witness was 16 years old on the day the alleged offenses occurred, an affirmative defense to the offense for which they were sentenced, indecent liberties with a child. Plewka also argues that the evidence was insufficient to convict him of either offense.
The complaining witness testified that she was raped by six young men including the two defendants on November 9, 1971. She said that she attended three morning classes that day at Tuley High School, Chicago, and then cut school about 11 A.M. when a schoolmate named Cheryl asked her to go to a get-together at Plewka's home. Plewka's mother and sister, with whom he lived, were not home but six or seven boys and about the same number of girls were there. The only persons the complainant knew were Plewka, Blakemore and a boy named Jerry Ybarra. She said that she and Cheryl stayed in the living room and that she drank a few sips of wine. Around 1 or 1:30 the young people began leaving the party but she and Cheryl stayed. She went to the washroom and then came back to the living room and talked with the boys who were there. The complainant asked where Cheryl was and was told that she was in the washroom but not to look for her. The complainant said she picked up her coat and started to leave, but the boys pushed her onto the couch and threatened to harm her if she did not have intercourse with them. She refused and was carried bodily into the bedroom by all six boys. She was thrown on the bed and while some boys held her, others removed her pants and undergarment. All the boys, including Plewka and Blakemore, had intercourse with her.
She testified that after they were through the boys helped her get dressed and handed her her coat. She left the house crying. She met Plewka's sister outside but said nothing about her experience. Cheryl was waiting for her, and she told her she had been raped. They walked to Cheryl's house and then to the home of Cheryl's boyfriend. He and they and two of his friends drove to the area of the Plewka apartment and then to the police station where the rape was reported. At a preliminary hearing, the complainant testified that she thought she left the apartment around 1:30, but at the trial she testified that she left there about 3 P.M. and reported the rape within an hour afterwards. The police officer on duty at the police station testified that the rape was reported at approximately 3:40 in the afternoon.
The complainant was examined by a doctor the same afternoon. His report stated that there were scratch marks between her breasts on her thighs. There was bleeding from lacerations of her hymen and spermatozoa were present.
Cheryl's testimony differed in some respects from that of the complainant. She said the complainant consumed about a pint of wine and also smoked some marijuana at the party, and at one point walked out of the living room with Ybarra. Cheryl left the party while the complainant was in the washroom. She left right after one boy threatened her. He told her she had better "give them some" or they were going to take it. She went to a corner store and returned to the apartment building about 15 minutes later, and saw the complainant as she came out. She was not crying but told Cheryl that she had been raped. She did not want to phone the police but did not say why. However, on the way to Cheryl's home they met some boys they knew and the complainant told them she had been raped. After driving around in the vicinity of the Plewka apartment they went to the police.
Blakemore's girlfriend, a girl named Luanne, testified that she attended the get-together and saw the complainant in the living room, dining room and the bedroom during the party. At one time the complainant went into the bedroom with Ybarra, and at another time she sat in there and talked with a group which included Luanne, Blakemore, Ybarra and one other boy. Luanne said that when she left the party, the complainant was still in the bedroom with the three boys.
Blakemore, who said that he was high from smoking marijuana, admitted that he tried to have intercourse with the complainant. He saw her in the bedroom when he went in there to change a phonograph record. He started to go into the bedroom a second time and was told by Ybarra to get out. He left but went back in shortly after that. Ybarra and two other boys were in the room and the complainant was lying on the bed with her clothes off from the waist down. Blakemore testified that he tried to have intercourse with her but was unable to, so he left the bedroom. The complainant came out about 15 to 20 minutes later.
Plewka denied having intercourse with the complainant. He testified that after sitting around and talking at the party, he went outside to walk his dog. Returning to the apartment about 20 minutes later, he saw her in the bedroom, lying on the bed with her underclothes off. He left the bedroom and sat down in the dining room. Cheryl, Luanne and one other girl were still in the apartment at the time. The complainant left the apartment about 1:30.
• 1, 2 Section 11-4 of the Criminal Code provides that any person of 17 years or older who performs an act of sexual intercourse with a child under 16, commits indecent liberties. An affirmative defense to the crime is that the accused reasonably believed the child was of the age of 16 or upwards at the time of the act. Section 3-2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 3-2), defines an affirmative defense:
"(a) `Affirmative defense' means that unless the State's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense."
Blakemore testified that he had met the complainant one time before the get-together and did not know how old she was on that day. He said that he would not have tried to have intercourse with her if he had known she was only 15. Plewka testified that he thought that the complainant was 16 or 17 at the time of the offense. He said that while he did not know her, he had seen her about a year before the get-together when she was at his house with one of his friends and at another time when they attended the same party. The complainant corroborated the defendants' testimony that they were only slightly acquainted. She testified that she had met Blakemore once or twice before the offense and had known Plewka for a few months and had been to his house once or twice before the party.
Blakemore's testimony that he would not have tried to have intercourse with the complainant if he had known she was 15 and Plewka's that he thought she was 16 or 17, barely met the statutory requirement that "some evidence" must be presented in order to raise an affirmative defense. (See People v. Brown (1971), 132 Ill. App.2d 875, 271 N.E.2d 395.) Neither explained why he thought she was more than 15 years old; neither described her ...