APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. SULSKI, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant was charged by complaint with the offense of contributing to the sexual delinquency of a minor in violation of section 11-5 of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 11-5.) After a jury trial, a verdict of guilty was returned. The trial court entered judgment on this verdict and sentenced defendant to six months in the House of Corrections.
Defendant now appeals from this judgment and contends: (1) that the complaint is fatally defective due to its failure to allege which part of the complaining witness' body defendant lewdly fondled or touched; (2) that the examination of the complaining witness failed to meet the established standards for determining the competency of a child witness; and (3) that the prosecution failed to prove beyond a reasonable doubt that the defendant lewdly fondled or touched the complaining witness, an essential element of the offense.
The prosecutrix (hereinafter referred to as Mary or complaining witness), 13 1/2 at the time of trial, testified that she first encountered the defendant as she and three of her friends were watching a movie at the McVickers Theater in Chicago on June 14, 1975. During the movie, the defendant, Charles Keesee, who was seated next to Mary, began a conversation with her. The defendant then put his arm around Mary, started to feel her leg and told her she "would love every minute of it." After Mary resisted the defendant's attempts to have her turn toward him, the defendant asked Mary if she wanted him to stop and she replied yes. Although she never sought the aid of an usher, Mary became frightened and left the show.
Mary went on to testify that as she was waiting for the bus outside of the theater, the defendant approached her, boarded the same bus, sat down next to her and initiated another conversation. Both the defendant and Mary exited the bus at Ashland Avenue. As Mary attempted to cross the street to catch another bus, the defendant grabbed her by the coat collar, put his hand over her mouth, and told her to keep walking and say nothing or he would hit her. After walking a short distance, the defendant forced Mary into an alley and up against a wall. The defendant then pulled Mary's skirt up to her waist, unzipped his pants, and told her to strip. Mary then started to scream and continued screaming for 30 seconds until the police arrived.
Diane Lowell, one of Mary's friends who accompanied her to the McVickers Theater on June 14, 1975, testified that neither she nor any of the other girls talked to the defendant during the movie. The girls talked about Jim Brown, the actor in the movie, and one of the girls told Diane that she taught Jim Brown to "get on hard." While the girls were talking, the defendant looked at Mary and asked her if she ever had sex. Mary did not reply. The defendant then put his arm around Mary, touched her on the knees and kissed her. During this time, Mary said nothing. Mary asked her girlfriends to walk her to the lobby, but the girls refused, saying that they had just returned from the lobby. Mary became irritated and exited the movie theater. About two minutes later, the defendant also left.
Willie Booth, a Chicago Police Officer, testified that on June 14, 1975, as he and his partner were on patrol driving southbound on Ashland Avenue in Chicago, he observed a male pulling a female into an alley. After waiting approximately one minute for traffic, Officer Booth and his partner proceeded toward the alley. Immediately after entering the alley, the officers heard a scream and proceeded farther into the alley where Officer Booth observed the defendant pinning Mary against a fence. The defendant's right arm was underneath the victim's skirt on her waist and his left hand was on the lower part of his zipper. At this time the defendant's fly was open. Officer Booth then exited the squad car, ordered the defendant to halt, and placed him under arrest. At this time the victim was crying.
Testifying in his own behalf, the defendant, 18 years old at the time of the incident, stated that he first encountered Mary and her friends while he was watching the movie, "Slaughter's Big Rip-Off." The defendant stated that he overheard Mary's friends commenting that "his penis was hot." Thereafter, Mary made a similar comment. Charles asked Mary if she wanted his penis and she started to smile. Later, when one of Mary's friends said "Yes, she wants it," defendant sat down next to Mary.
After the defendant and Mary discussed the movie and the school Mary attended, Mary told her girlfriends that she was going home. The defendant asked Mary if she wanted him to meet her outside and Mary responded, "Yes, at the bus stop." The defendant and Mary boarded the bus together and continued talking about the movie and sex. The defendant asked Mary if she would "turn him on" and Mary replied that she would think about it. According to the defendant, up to this point, he had never touched Mary. The two got off the bus together and turned to walk down Warren Street, holding hands as they walked. Charles suggested that they go into the alley. Mary made no reply, but walked into the alley as if "she really wanted to do it." The defendant asked her if she wanted to be left alone, but Mary said nothing.
Defendant further stated that he never pushed Mary against a wall or fence. He continued to hold her hand as she backed against the fence in the alley, but this was the only physical contact he had with her. He stated that Mary began to scream when she heard the police car pulling up. From the time the defendant met Mary until the time the police arrived, the only way he touched Mary was by holding her hand.
• 1 Defendant first contends that the complaint, which failed to allege which part of the victim's body defendant lewdly fondled or touched, is fatally defective. Defendant was convicted under section 11-5(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 11-5(a)(3)) which provides:
"Any person of the age of 14 years and upwards who performs or submits to any of the following acts with any person under the age of eighteen, contributes to the sexual delinquency of 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 ...