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People v. Krison

OPINION FILED AUGUST 8, 1978.

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

v.

JOHN KRISON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. WILLIAM L. BEATTY, Judge, presiding. MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Defendant, John Krison, was charged by information filed in the circuit court of Madison County with two counts of indecent liberties with a child in violation of section 11-4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1976, ch. 38, par. 11-4(a)(3)). Following a bench trial, he was found guilty as charged and was sentenced to two concurrent terms of 20 to 30 years imprisonment. Defendant appeals and presents the following issues for review: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether error was committed by the admission in evidence of certain photographs; (3) whether a waiver by defendant of his right to a preliminary hearing is adequately reflected in the record; and (4) whether the sentences imposed are excessive.

At trial, Police Sergeant Eldon McEuen testified that on October 27, 1976, he arrested defendant on the instant charges at defendant's place of employment. Defendant asked McEuen if he could go to the washroom. McEuen agreed but first demanded to search defendant. Before he could do so, defendant entered the washroom and shut the door. McEuen soon thereafter opened the door and observed defendant placing a piece of paper in an opening in the wall. The paper was retrieved but turned out to be innocuous. Subsequently, a search under warrant was conducted of defendant's home. Among the items found were: People's exhibit 2 consisting of 17 photographs of the 11-year-old complainants, Pam and Annette, wearing casual clothes and bathing suits, some of which also included a third child, Tammy, and defendant's nine-year-old son; People's exhibit 4 consisting of 45 photographs of several nude adults, including defendant and his wife, in various sexual poses; and People's exhibit 5 and 6, consisting of a movie projector and screen. With the consent of defendant's employer, a search was also conducted of the previously mentioned washroom wherein the police found People's exhibit 7 consisting of six photographs which depicted defendant and Tammy in various sexual poses. Of the above-stated exhibits, during trial People's exhibit 2 was admitted in evidence without objection and all the other exhibits were admitted over defendant's objection with the exception of certain of the photographs in exhibit 4 which were withdrawn by the State.

Complainant Pam testified that she lived approximately one block from defendant's home and that during September and October of 1976, she and her friend, complainant Annette, frequently visited defendant's home. She stated that on three occasions during the end of September and beginning of October, defendant showed her and Annette movies in his bedroom. The movies were "generally about sex." Pam stated that during the last of these movies, defendant "stuck his penis out at the movie projector into the light" causing its reflection on the screen. She also stated that two or three weeks before she first talked with the police about this matter, defendant grabbed her on her breast while she was watching television with Annette and defendant's son. Officer McEuen later testified that he had first spoken with Pam on October 25, 1976. Pam further testified that during this period defendant "asked us to play with his penis, but — for a couple of weeks we said, no, and then we finally said, yes." She stated that she and Annette "played with his penis" for which they were paid a dollar. He also asked them to "kiss it" but they refused.

Pam identified exhibits 5 and 6 as the projector and screen which defendant used to show them the movies. Exhibit 2 was identified by her as photographs defendant had taken of her, Annette, Tammy and defendant's son. Pam identified certain of the photos in exhibit 4 as those defendant had shown to her during the period in issue. Exhibit 7 was identified as Polaroid prints which Pam and Annette had taken of defendant and Tammy.

Annette next was called as a witness and she testified substantially the same as had Pam. The parties then stipulated that defendant was born during 1915.

Defendant presented no evidence.

As previously stated, defendant was convicted of two counts of having violated section 11-4(a)(3) (Ill. Rev. Stat. 1975, ch. 38, par. 11-4(a)(3)) which prohibits: "[a]ny 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." Specifically he stands convicted based on the testimony of Pam that "[w]e played with his penis", and of Annette that "we touched his penis for a dollar." Defendant first contends that he was not proven guilty beyond a reasonable doubt and he argues that the testimony of Pam and Annette is neither clear and convincing nor is it otherwise corroborated as required to sustain such convictions. (See People v. McGrath, 28 Ill.2d 132, 190 N.E.2d 746.) Mindful of our duty to carefully review the evidence in cases involving indecent liberties with a child (People v. Nunes, 30 Ill.2d 143, 195 N.E.2d 706), we find from the record ample evidence to sustain defendant's convictions.

No objection was raised by defendant to the competency of either child to testify. In support of his argument, defendant points to certain discrepancies in the witnesses' testimony, the lack of evidence of prompt complaint, and the apparent reluctance of the children, particularly Annette, to testify. None of these matters, however, justify a reversal.

• 1, 2 The discrepancies in the witnesses' testimony all involved matters collateral to the essential elements of the crime. The fact that there were such minor discrepancies does not destroy the credibility of the witnesses but goes only to the weight to be afforded by the trier of fact to their testimony. (People v. Watts, 19 Ill. App.3d 733, 312 N.E.2d 672.) Nor can we attach much significance to the lack of prompt complaint under the circumstances. It must be remembered that the purpose of section 11-4 of the Criminal Code is to protect immature children from being deliberately victimized by adults. (People v. Bolyard, 23 Ill. App.3d 497, 319 N.E.2d 265, rev'd in part on other grounds, 61 Ill.2d 583, 338 N.E.2d 168.) The evidence shows that the children were not unwilling participants in the sexual victimization directed against them. The natural guilt, shame, fear and embarrassment arising therefrom explains any reluctance the children felt before stepping forward to speak. So too, such makes any reluctance of the children to speak at the witness stand equally understandable.

• 3 The witnesses consistently and unwaveringly maintained that defendant committed the acts charged. We find their testimony to be clear and convincing. Moreover, the evidence showing the nature and pattern of sexual misconduct in defendant's relationship to the children lends strong support to their testimony about the acts charged. Consequently, we find no basis to disturb the determination of the court of defendant's guilt.

Next, defendant contends that the court erred in admitting in evidence the lewd photographs in exhibits 4 and 7. As stated, those photographs admitted from exhibit 4 were those which Pam testified defendant had shown to her. The photographs in exhibit 7 were those which were taken by, or in the presence of, Pam and Annette. Defendant relies on the general rule that evidence of criminal acts of misconduct by a defendant, unrelated to the charge, are inadmissible. People v. Romero, 66 Ill.2d 325, 362 N.E.2d 288; People v. Lehman, 5 Ill.2d 337, 125 N.E.2d 506.

• 4-7 A recognized exception to this rule, however, exists in cases involving indecent liberties with a child in that evidence of separate offenses with the same child is admissible to show the relationship of the parties and of the intent with which the charged act was done. (People v. Richardson, 17 Ill.2d 253, 161 N.E.2d 268; People v. Kerney, 413 Ill. 404, 108 N.E.2d 779.) We find that both exhibits fall well within this exception. These photographs were independently relevant to show a pattern of sexual misconduct with the complainants by defendant; in the first instance with regard to lewd pictures he had shown to Pam, and in the second, with regard to lewd pictures he permitted the complainants to photograph and to witness. The conduct charged was not an isolated incident. The trier-of-fact was entitled to view the testimony of the incident within the context of the actual relationship between defendant and the complainants. To hold otherwise would place an unfair strain upon the credibility of the complainants' testimony concerning the charged offense. Further, the probative value of such evidence far outweighs any prejudicial effect.

Defendant next contends that the record does not adequately reflect a waiver by him of his right to a preliminary hearing.

The record shows a standard form designated "People of the State of Illinois vs John Krison" "Case No. 76WDF61 76WCF62." The form is titled "WAIVER OF RIGHT TO PRELIMINARY HEARING" and it contains a statement relating the purpose of a preliminary hearing and it lists various rights of criminal defendants. The form also contains a waiver clause and it is dated, November 12, 1976, and bears defendant's signature. The record also shows certain notations written ...


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