APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a bench trial, Jerome Collins (defendant), was found guilty of indecent liberties with a child. (Ill. Rev. Stat. 1973, ch. 38, par. 11-4.) He was sentenced to 10 to 30 years. He appeals.
In this court, defendant contends only that the State has failed to prove beyond a reasonable doubt that a lewd fondling or touching occurred and that such touching was done by the defendant with the specific intent of arousing or satisfying his sexual desires. A factual statement is essential.
The case involves an infant child some 5 weeks old. The mother of the infant was Jacqueline Miller and the father was Ed Levy Steele. Alice Miller, grandmother of the infant, testified that she was at home on August 7, 1974. About 10 o'clock that evening those also present in the home were twin sisters named Gail and Vail Adams, Brenda Carter, Gail Rogers, the mother of the infant and the defendant. The witness saw the baby on the bed in the bedroom shortly before 10 p.m. At that time the mother changed the baby's diaper. Some 5 minutes later the mother and all of the other persons but defendant and the witness left the house together to purchase some food. The witness put some chicken onto the stove and went out to the front stoop where she sat with a friend named Wallace Gullett. At that time defendant was in the living room some 10 feet from the infant's bedroom.
About 15 minutes later the witness reentered the house. She saw defendant in the bedroom sitting on the bed some 5 feet away from the infant. She returned to the front stoop. Shortly thereafter the mother and her companions returned. The mother came to the front and told the witness to come look at the baby which was bleeding. She did and found the baby bleeding from the vaginal area. Defendant told the mother that the baby was wet and needed changing and a few seconds later he said that the baby was bleeding. Shortly thereafter defendant went into the washroom and closed the door. The police were called and the infant was taken to the hospital. On cross-examination the grandmother also testified that two other men named James Carter and Carl Beck were not present at the home that evening. During that entire day she had "one shot of vodka and orange juice."
Jacqueline Miller, the mother, corroborated this testimony. She added that when she first saw the baby upon her return its outer pants had been removed and "one side of the diaper was loose." On cross-examination she testified that her mother was not drunk at the time; the defendant did not enter the washroom and that James Carter and Carl Beck had been outside the gate but did not enter the home. She also testified that Brenda Carter and Gail Rogers had left with the group to buy food but had not returned to the home.
The parties stipulated that if a qualified physician were called he would testify that he had examined the infant, 43 days old, at the hospital emergency ward at approximately 10:30 p.m. that day. He found external and internal damage done to the vaginal area of the infant, and, in his opinion, this damage could only have been done by external trauma resulting from penetration or attempted penetration of the vaginal area.
The defendant first called police investigator John Herman. He testified that he was uninformed regarding any physical inspection of the defendant when arrested.
Defendant called Vail Adams, one of the twins. She testified that the group had left the home for food about 7:30 or 8 p.m. They were gone about 40 minutes. When they left they saw James Carter and Carl Beck "just coming in." When the police came, after the group had returned, Beck and Carter were present. She testified that at 9 p.m. Alice Miller, the grandmother, was drunk. On cross-examination she stated that she was the "girlfriend" of the defendant. Neither she nor her sister Gail wanted the defendant to go to jail. She never told the mother of the infant that the defendant had "done it." She knew that it would help defendant if she said others were in the home at the time.
Gail Adams testified that she went to the home about 6 p.m. with her sister Vail, Gail Rogers and the defendant. The group went to obtain food and were gone about 40 minutes. As they were leaving Beck and Carter "came in." When the group returned and when the police arrived, Beck and Carter were still there. The infant's grandmother was drinking heavily and was drunk. On cross-examination the witness stated that she and Vail had been girlfriends of defendant but presently were not. She had spoken to defendant about the case more than 10 times but not more than 20 times. She and her sister had talked to defendant about it on the morning of her testimony. She did not remember if at the hospital she told the mother of the infant that she did not know why defendant "would do something like this."
Defendant testified that he came over to the house about 6 p.m. that day with the twin sisters and Gail Rogers. As they left to buy food, Carl Beck and James Carter came into the house. They were there when the police came. At one point, defendant went out to a store some four doors away and bought potato chips and pop. The store was not there any more at the time of trial. Also, Ed Levy Steele and his brother John Steele had been present at the home. Alice Miller, the grandmother of the infant, had been drinking and was drunk. He described himself as a boyfriend of Vail Adams. Defendant denied that he had ever sat on the bed with the baby; or that he was coming out of the bedroom when Jacqueline Miller, the mother, came in. He told the police that the mother had left him in charge of the baby. On cross-examination he denied telling a police officer that he had held the baby on his chest while he was lying down in the bedroom. He added that the police did not ask him how the baby got hurt. Defendant also testified that upon his arrest the police required him to pull down his pants and shorts and they inspected his body and his hands.
Gail Rogers was present at the home that evening. She testified that Ed Levy Steele was also there. She had not seen Carter and Beck in the house that day. She left with the group to purchase food. At that time, Carter and Beck "were coming in." When they returned, she did not see Carter and Beck in the home. It was dark when the group left for food but she was not sure of the time. When they returned from buying the food, only the defendant and Ed Levy Steele were there. At that time the grandmother, Alice Miller, was out on the stoop. She testified "it looked like" the grandmother had been drinking.
On rebuttal the State called John Steele, brother of Ed Levy Steele, father of the infant. John Steele testified that he was present at the home that afternoon but he and his brother both left the home at about 3:30 or 4 p.m. Ed Levy Steele, the father, was also called on rebuttal. He came to the home about 10 a.m. with his brother John. At about 12 o'clock he and John both left. The father came back alone about 4 or 5 p.m., stayed about 5 minutes and left. He did not see Alice Miller, the grandmother, drinking.
John Herman, the same police investigator called by defendant, testified he saw defendant at the police station about 1 o'clock the next morning. After being advised of his rights, defendant stated he was in the house as a babysitter while the mother went out to get hamburgers. Defendant stated he was holding the baby on his chest while watching television. Defendant said he was in the bedroom while the mother went to the store. When the mother came home she found the baby was bleeding. Defendant stated he did not know how the infant was injured. Defendant never told him he had left the house for a while or that there were other persons in the house at the time defendant was present.
In surrebuttal, defendant testified he was arrested at the hospital. He did not see Investigator Herman at the hospital nor did he see him later at the police station. He was not ...