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People v. Cessna

OPINION FILED OCTOBER 26, 1976.

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

v.

ROBERT CESSNA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lawrence County; the Hon. ALBERT McCALLISTER, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

The defendant, Robert Cessna, was charged by complaints filed in the circuit court of Lawrence County, with adultery, fornication, and two separate charges of contributing to the sexual delinquency of a child, one of which was eventually dismissed by the court. Following a bench trial defendant was found guilty of the remaining charges. Defendant was sentenced to two years' probation for the offense of adultery and to 90 days' imprisonment and a fine of $250 for the offense of contributing to the sexual delinquency of a child. From these judgments defendant appeals. The record does not show the ultimate disposition of the fornication charge, which apparently was dismissed and no issue is raised on appeal concerning that charge.

On appeal, defendant contends: that he was not proved guilty beyond a reasonable doubt of contributing to the sexual delinquency of a child; that the State failed to prove that his conduct constituting adultery was open and notorious; and that both of these convictions were based on the same act.

The charges at issue both stem from the allegation that on or about October 12, 1974, defendant had sexual intercourse with Miss J. Milligan. The facts briefly stated are that during the time at issue defendant was married and was 23 years old. He had come from Indiana, where he had left his wife, and he was living at his mother's house (hereafter the Siegle's house). Miss J. Milligan, who was born on February 21, 1957, was 17 years old in October, 1974. At various times she resided at her sister's house, her her aunt's house, and a foster home. She testified that she had met defendant early in October, 1974, and had stayed at the Siegle's house on a number of occasions during that month. On these occasions she had slept with defendant and they had had sexual intercourse. She also testified that defendant had given her an engagement ring about a week after they first met. Other members of Milligan's family testified that she and defendant had been seen together. Milligan's father, the complainant, testified that an attorney had told him that defendant had consulted the attorney about obtaining a divorce and marrying Milligan. Mr. Milligan stated that he based his allegations against defendant on a "look at her gut," referring apparently to a pregnancy.

Defendant's mother and stepfather testified that Milligan had stayed at their home for only two nights and that she had a bedroom separate from defendant's. Defendant denied having sexual intercourse with Milligan.

• 1 In reviewing the record, we have kept in mind the principle as stated in People v. Pointer, 6 Ill. App.3d 113, 118, 285 N.E.2d 171, 175:

"* * * a reviewing court is charged with a special duty to exercise utmost caution and circumspection in scrutinizing the sum and substance of the evidence upon which a conviction for a sex offense is predicated. This principle, of course, reflects judicial awareness that a female's accusation, often stemming from clandestine circumstances, is easily made, difficult to prove and ofttimes even more difficult to disprove."

Defendant's contention concerning his conviction for contributing to the sexual delinquency of a child is that it should be reversed since it is solely based on the testimony of Milligan which was neither corroborated nor clear and convincing. It is true that where such a conviction is based on the testimony of the victim the evidence must be corroborated or must be otherwise clear and convincing. (People v. Ulrich, 30 Ill.2d 94, 195 N.E.2d 180.) The only testimony of Milligan in dispute concerns whether she and defendant had sexual intercourse with each other. We find her testimony to be clear and convincing. Milligan's testimony which was undisputed and corroborated establishes that she and defendant exhibited mutual feelings of affection during the period in question. On at least two occasions she had stayed at the Siegle's house overnight and while the Siegles slept downstairs, her bedroom was upstairs near defendant's bedroom. This evidence supports Milligan's disputed testimony. The trial court is in a superior position to judge the credibility of witnesses and to weigh their testimony. After a careful review of the record, we do not find the evidence so unsatisfactory or insufficient as to raise a reasonable doubt of defendant's guilt of contributing to the sexual delinquency of a child.

Defendant next contends that his conviction for adultery should be reversed because the State failed to prove that his behavior was "open and notorious."

Section 11-7 of the Criminal Code provides in part:

"Any person who cohabits or has sexual intercourse with another not his spouse commits adultery, if the behavior is open and notorious, and

(1) The person is married and the other person involved in such intercourse is not his spouse. * * *." Ill. Rev. Stat. 1975, ch. 38, par. 11-7(a).

• 2 Clearly the adulterous conduct proscribed by this provision is not that which is essentially private or discreet. (People v. Potter, 319 Ill. App. 409, 49 N.E.2d 307.) Behavior which is "open and notorious" by definition means that such behavior is prominent, conspicuous and generally known and recognized by the public. The prohibition of open and notorious adultery is meant to protect the public from conduct which disturbs the peace, tends to promote breaches of the peace, and openly flouts accepted standards of morality in the community. (See Ill. Ann. Stat., ch. 38, par. 11-1 et seq., Committee Comments — 1961, at 290 (Smith-Hurd 1972).) What is of marked interest is the scandalous effect of the behavior and its affront to public decency and the marital institution. Notoriety of the adultery must extend not only to the sexual intercourse or the cohabitation but also to the fact of the absence of a marital relationship between the parties where one party is known to be married. Ill. Ann. Stat., ch. 38, par. 11-7, Committee Comments — 1961, at 425 (Smith-Hurd 1972).

In People v. Potter, 319 Ill. App. 409, 49 N.E.2d 307, the court, in affirming the defendant's conviction for having lived in an open state of ...


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