APPEAL from the Circuit Court of McHenry County; the Hon.
JAMES H. COONEY, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant, Harry Meier, was indicted by the McHenry County grand jury on six counts of indecent liberties with a child, involving three male children. Three of the counts charged indecent liberties by means of lewd fondling as to each of the children, and three of the counts charged indecent liberties by means of an act of deviate sexual conduct as to each of the children. Defendant, at a bench trial, was found not guilty as to the three charges involving deviate sexual conduct and one of the lewd fondling charges. He was found guilty on the two remaining charges of indecent liberties by means of lewd fondling and sentenced to concurrent terms of imprisonment of 4 years to 4 years and 1 day. Defendant contends on appeal that the findings of guilty on the lewd fondling charges are legally inconsistent with the finding of not guilty as to the other lewd fondling charge and that he is thereby entitled to a new trial on those two charges, that he was denied a fair trial when the court allowed improper hearsay testimony, and that he was denied his constitutional right to a jury trial.
At trial, Gerald Tavenner, who had previously pleaded guilty to these charges, testified first. He met defendant, whom he had known previously, on August 14, 1972. Tavenner and defendant may have seen Scott Sagel, Lawrence Berent, and Bruce Wardell, the three boys here involved, on that date, but he did not recall that any activities took place on that date. The next morning, August 15, 1972, Tavenner and defendant met the three boys at the McHenry train station and took them for a ride in Tavenner's car. They decided to go fishing so the boys were driven home to pick up fishing gear. They fished for 1 to 2 hours and then took the boys home. After lunch they took the boys swimming in a pool at Tavenner's apartment complex. After swimming, the group went into Tavenner's apartment, undressed in the bathroom and proceeded nude to the living room. The boys had removed their swimming trunks by themselves. After a while, defendant took the oldest boy (Wardell) into the bedroom for 15 minutes with the door shut. When they came out of the bedroom, both had erections. Shortly thereafter, defendant went into the bedroom with the small blond boy (Sagel) and shut the door. After about 15 minutes both came out with erections. After a short time the tallest boy (Berent) went into the bedroom with defendant for about 15 minutes. Both came out with erections. Then Tavenner took the oldest boy into the bedroom when they engaged in mutual fondling and looking at "girl magazines." After about 15 minutes the other came into the bedroom and looked at the magazines for a few minutes. Then they all returned to the living room, still unclothed, where defendant was touching the boys on their penes for about a minute. Then they all got dressed and the boys were taken home.
Bruce Wardell testified as to the fishing and swimming on August 15. After swimming they went to the apartment where he removed his own swimming suit. The others took off their swimming suits. Defendant tried to pull Wardell into a room. Wardell resisted and Berent helped him pull away. Then Wardell sat down. Next defendant took Berent into the room. When these two came out 10 to 15 minutes later, Wardell noticed nothing unusual about either's appearance. Sagel also went into the room with defendant. Wardell went into the room with Tavenner and looked at "playboy books." On August 14, 1972, a similar fishing and swimming scenario took place substantially as detailed above for August 15, 1972. At the apartment on August 14 defendant put his mouth on Wardell's penis, while in the bedroom. Defendant did nothing to the other two boys on August 14.
Scott Sagel testified that after fishing and swimming on August 15, 1972, the group went to Tavenner's apartment where defendant told them to take off their pants, which they did. Defendant tried to pull Wardell into the bedroom. Defendant and Wardell were wrestling. Defendant grabbed Wardell's penis and Wardell pulled off defendant's wig. Wardell went into the room with defendant on August 15, but he refused to go into the room on August 14. After Wardell and defendant came out of the room (it is not clear what date is being referred to), having been in there about an hour, Sagel went in. Then defendant put his mouth on Sagel's penis. Then Sagel left the room and Berent went in. Defendant told the boys to take off their swimming suits when they got to the apartment. He started pulling the suits off and fell down. Defendant kissed Sagel on the forehead on August 14.
Lawrence Berent could not remember the exact date in August 1972 when the instant events transpired. The three boys saw defendant and Tavenner on two successive days. Defendant and Tavenner told the boys to take their clothes off at the apartment. Then defendant took Berent into the bedroom and defendant put his mouth on Berent's penis. The other two boys also went into the bedroom with defendant, with the door shut. At the apartment on this second day, defendant took off Berent's swimming trunks. When Berent got home he told his mother and sister what had happened.
Ellen Berent, the mother of Lawrence Berent, testified that on the afternoon of August 15, 1972, her son told her about going to an apartment with two men and that one of the men put his mouth on Lawrence's penis and the other man showed him "some dirty books of girls."
Robert Krantz, a McHenry policeman, testified that defendant voluntarily admitted putting his mouth on the boys' penes. Robert Zujewski, another officer, corroborated this testimony.
Defendant also testified. He testified as to meeting the boys at the train station on August 14, 1972, and the subsequent fishing and swimming. While in the pool, they were all grabbing each other in the genital area and under the arms, wrestling. At the apartment all removed their swimming suits at Tavenner's suggestion, who said he did not want the new carpeting to get wet. They were all playing cards in the nude and then, at the boys' suggestion, they wrestled. Defendant grabbed Wardell, who had defendant in a scissors hold with his legs around defendant's neck. Defendant was trying to release himself from Wardell by biting him on the stomach. Then Wardell pushed his penis into defendant's mouth. Defendant told Wardell that was an accident and that he did not "usually do those things and would he please excuse me." Wardell apologized. While they had been wrestling, defendant's wig had fallen off. Defendant suggested that the two of them go into the bedroom to discuss what Wardell had mentioned about "playing around in the hayloft" with his cousin. Wardell declined and one of the other boys volunteered to go into the bedroom with defendant. In the bedroom they talked about sports, school, girls, and the sexual activities of the boy, namely mutual masturbation with relatives. Defendant took each of the boys into the bedroom "to find out what their feelings were on these sort of things."
Defendant further testified that on August 15, 1972, they again met the boys and went fishing and swimming. At the pool they were wrestling and trying to remove each other's swimming suits. Then at the apartment the boys took their swimming suits off in the bathroom. The three boys then sat on the couch and fondled each other's genitals. Tavenner and Wardell went into the bedroom for 20 to 25 minutes and when they returned Wardell's hand was covered with semen. The other two boys went into the bedroom with Tavenner and defendant this day. Defendant took Sagel into the bedroom where they laid on the bed and talked about baseball. Defendant rubbed Sagel's stomach. Sagel put his arm around defendant and they talked about girls and sexual relationships. Then defendant took the heaviest of the three boys into the bedroom. They talked about fishing, swimming and cassette recorders. Then everyone put their clothes on and they took the boys home. Defendant admitted that he had touched the genitals of all three boys in the pool on August 14. He admitted that he accidentally put Wardell's penis into his mouth on August 14. On August 15 defendant did not put anyone's penis into his mouth, but he did touch the stomach area of all three boys while the boys were nude. The boys did not have erections at this time.
The issues on appeal are:
1. Were the convictions on counts of indecent liberties by means of lewd fondling as to two of the boys involved here legally inconsistent with the finding of not guilty on the same charge as to the third boy involved?
II. Did the trial court deny defendant a fair trial by considering ...