APPEAL from the Circuit Court of McHenry County; the Hon.
JAMES H. COONEY, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 11, 1980.
Defendant, John F. Mullen, was charged by indictment filed in McHenry County on November 19, 1976, with indecent liberties with a child. Following a jury trial, defendant was convicted as charged and sentenced to 4 to 8 years imprisonment.
Defendant appeals on the grounds that: (1) the evidence was insufficient to disprove the affirmative defense raised by defendant; (2) the prosecutor's opening and closing remarks were inflammatory and unduly prejudiced the jury against the defendant; (3) the trial judge failed to give sua sponte a limiting instruction on evidence of prior offenses, and an instruction on the lesser-included offense of contributing to the sexual delinquency of a child, thereby denying defendant a fair trial; (4) the existence of evidence material to the defense was not disclosed until trial and the sentencing hearing, thereby denying defendant due process, and (5) the application of the indecent liberties statute was inappropriate in this case.
The indictment charged that on September 3, 1976, the defendant engaged in acts of oral and anal intercourse with the complaining witness in violation of section 11-4(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-4(a)(2)). It was established that the defendant was 51 years old at the time of trial.
The testimony of the complaining witness, who was a 15-year-old boy at the time of the offense, disclosed that he was delivering papers and met the defendant in the summer of 1975. The complainant had not previously had sexual intercourse with either a man or a woman. Over defense counsel's objections, complainant testified in detail concerning his subsequent sexual relationship with defendant at defendant's home over approximately the next year and a half. This sexual relationship included acts of masturbation and oral and anal intercourse. He testified defendant asked him his age the first time they met and he told him he was 14. Regarding the incident charged on September 3, 1976, complainant testified he and the defendant engaged in oral sex and anal intercourse and that he was 15 years and 9 months old on that date. Complainant testified he did not consider himself a homosexual at the time of trial, but he did at the time he was seeing the defendant.
Complainant stated that he told his grandmother that he was masturbating and the next day an appointment with a psychiatrist was arranged. Complainant testified he was admitted to Ridgeway Hospital in the latter part of August of 1976 and remained there for the next three months. Complainant testified he had not been forced to submit to homosexual acts with the defendant and that prior to September 3, 1976, he had masturbated with a boy friend and also had homosexual contact with five other people at Zayre's in Crystal Lake during either 1975 or 1976. Complainant testified he remembered telling the defendant he was in high school but could not remember telling him that he had a car.
Complainant testified inconsistently regarding the date of his admission to Ridgeway Hospital, stating both that it was in August and that it was some time after a camping trip he had taken with his family and a friend on Labor Day weekend, September 4, 5 and 6 in 1976. He testified that he had gone to other public washrooms in Carpentersville and Elgin to make other contacts. He further testified that he told the defendant that he hoped to get a job other than delivering newspapers, and that he would be working with his father when he turned 16.
Complainant's grandmother testified regarding her close relationship with him. She noted that between the summer of 1975 and September of 1976 he had been very nervous and upset, and could not concentrate on his school work. She testified the psychiatrist diagnosed him as being on the verge of a nervous breakdown. On the doctor's recommendation, he was admitted to Ridgeway Hospital in Chicago on September 28, 1976. Complainant telephoned her from the hospital on October 14, 1976, and admitted he was involved with a man and gave her defendant's name and the location of his house. She remembered complainant telling her that the defendant had tried petting with a boy friend of his on one occasion, but that the friend became afraid. He also told her that another man, a friend of defendant's, had been involved.
Complainant's father testified that he and complainant had taken the family camper to a campground in Marengo on Thursday, September 2, and then returned home. Then he and his wife, two daughters and complainant left about 4 p.m. on Friday, the third of September, to go back to the camper for the Labor Day weekend. They returned home Labor Day evening. He stated he did not suspect complainant was involved in a homosexual relationship until he admitted to his grandmother that he was masturbating.
Complainant's mother testified that he began school in September of 1976, but was expelled due to his truancy. Her testimony corroborated that of complainant's father regarding the events of Labor Day weekend. She testified that at a meeting with McHenry County Assistant State's Attorney Haskell Pitluck, Lake-in-the-Hills police officer Kruze, herself and complainant's grandmother, complainant related in detail his sexual encounters with the defendant. In trying to pinpoint the date of the acts alleged in the indictment, they originally arrived at the date of August 29, but discovered they were using a 1975 calendar. She testified there was never any doubt that the date they were trying to discover was the Friday before Labor Day in 1976, September 3.
The defense motion for a directed verdict was denied, and the defendant's mother was called to testify. She testified she lived with her husband in Chicago and stayed with her son every other week at his home in Lake-in-the-Hills. She stated she knew she was at her son's home on Friday, September 3, 1976, by figuring back from Thanksgiving week when she would ordinarily have gone to her son's, but stayed in Chicago instead to fix Thanksgiving dinner. She said she did not see complainant at her son's home on September 3. She said nothing unusual occurred on September 3, 1976, and the only way she could recall being at her son's home then was because of her figuring back method.
The defendant testified he lived alone but that his mother was there every other week. He was at his home with her on September 3, and left the house during the day to go grocery shopping. The defendant denied seeing complainant on September 3, 1976, and denied performing an act of "devious [sic]" sexual conduct upon him. He admitted he knew complainant and first found out his age after being arrested. He did not recall complainant ever telling him his age, but remembered being impressed that he was older than 16 because he spoke about being in high school, about either having or getting a car, about either going for or already having a driver's license, and about his father getting him a job at the warehouse where he worked.
On cross-examination, the defendant testified that if complainant had told him his age he would not have let him in the house. The defendant said there was nothing wrong with having a boy under 16 in his home except that he didn't want any problems, and that younger boys had vivid imaginations. He could not recall exactly when he had the discussion with complainant about high school but thought it was in 1975. The defendant also recalled that the conversations with complainant about working at the warehouse with his father, the car and the driver's license probably occurred in 1975, but not all on the same occasion. The defendant stated he helped his mother to remember she had been with him on September 3, by figuring back on the calendar according to her routine. He said he never thought it was important to ...