APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 4, 1980.
After a bench trial, George W. Britton (defendant) was found guilty of four counts of indecent liberties with a child (Ill. Rev. Stat. 1973, ch. 38, par. 11-4). He was sentenced to four concurrent terms of 12 to 40 years. Defendant appeals.
In this court, defendant contends the State failed to prove beyond a reasonable doubt that the minors involved in the offenses were not prostitutes; the trial judge refused to consider defendant's prostitute defense when he made his finding of guilty; the judgments of conviction on two of the four counts of indecent liberties should be vacated since defendant's conduct can only constitute two such offenses; and the defendant's sentence is excessive.
Edward, 13 1/2 years old, testified that on the morning of May 18, 1976, he and his younger brother Herbert, 11 years old, skipped school and went to defendant's apartment. Edward had been in defendant's apartment on 10 previous occasions. Herbert had been there on four previous occasions. Edward knew defendant would be home because he had seen defendant the previous weekend and defendant had told him to come over that day. Edward rang the doorbell and defendant let the two boys into his apartment. They watched a film which showed a boy and girl engaging in sex acts. The boys then had juice and donuts. Defendant, Edward and Herbert all went into the bedroom and defendant told the boys to take off their clothes. Edward took off his own clothes. Defendant took off Herbert's clothes and then his own. Defendant pushed Herbert into Edward and the boys fell on the bed. Defendant also got on the bed, grabbed Edward by the back of the neck and pushed Edward's head into contact with his penis. Defendant did the same thing with Herbert. Defendant then engaged in fellatio with both of the boys.
The three all dressed and left the apartment. Defendant drove the boys in his truck to a Burger King restaurant where he bought them lunch. Then, he took them to a lake where they rode defendant's mini-bike. Defendant gave Edward and Herbert $3 each. Defendant then drove Edward and Herbert to within three blocks of their home. Edward and Herbert did not tell their parents what happened. The next day at school, Herbert told the principal and some teachers.
Edward further testified he took his clothes off in the apartment "because if I didn't, George [defendant] would try to hurt me or something." However, Edward also stated defendant had not threatened him and he could have left the apartment if he wanted. Edward and Herbert had been with defendant on previous occasions and had taken their clothes off. Defendant never hit or struck Edward. Defendant had given money to Edward on other occasions but not every time Edward had sex with him. Edward stated he had not asked defendant for money on May 18, 1976, and only asked him for money one time before in order to buy a pop. While Edward testified he went to defendant's apartment to make some money, he also stated he did not know defendant was going to give him money. Defendant did not previously tell Edward he would give him money if he came over that day. Defendant told Edward not to tell anyone what was occurring between them.
Herbert testified that on the day in question it took an hour and a half for Edward and himself to walk from their home to defendant's apartment. Herbert talked with his brother about going to defendant's apartment but the boys did not talk about getting any money from defendant if they visited him. Defendant had given Herbert money before but not for having sex. Edward and Herbert went to a nearby park. When they got to the park, Herbert wanted a drink of water. The faucets in the park were not working. It was Herbert's idea to go to defendant's apartment for a drink of water. Herbert's testimony about what happened in the apartment corroborated Edward's version. Herbert also felt he was free to leave the apartment at any time. He did not remember if defendant gave him money that day. Herbert stated he did not tell his father about the incident until after he had told his teachers. He said he was afraid to tell his father what was going on between defendant and himself.
Officer Raymond Sykes testified he had a conversation with Edward and Herbert on May 19, 1976. He then proceeded to locate and place defendant under arrest. During a lawful search of defendant's apartment, the police recovered a roll of film which was stipulated to be the film shown to Edward and Herbert prior to the sexual acts with defendant.
Defendant testified he first met Edward at a park at Western and Addison. Edward was talking to a friend of the defendant. The friend left the park. Edward came over to defendant and asked for a ride on defendant's mini-bike. Defendant told Edward he would give him a ride if Edward got his parents' permission. Defendant drove Edward home. The father gave his permission and defendant and Edward returned to ride the bike. Nothing else occurred on that day.
Defendant next saw Edward when Edward came to his apartment with a boy named Danny or Darryl. Danny knew where defendant lived and had come over to his house to make money. Defendant and Danny had sex while Edward watched television. Defendant gave Danny $3 in Edward's presence and the boys left defendant's apartment. About two weeks later defendant saw Edward and another boy named Danny in the park. Defendant talked to both of the boys about "messing around." Defendant and Danny agreed defendant would take Danny and Edward to the roller derby and pay their way if they would "mess around." Danny decided not to "mess around" but Edward did and defendant took him to the roller derby.
Defendant stated he had sex with Edward on eight or 10 separate occasions. Defendant paid him each time they had sex. He also had sex with Herbert at least four or five times and paid him each time. Edward and Herbert would not have sex unless they received money. Edward often asked for more money than defendant was willing to give. Defendant stated he considered Edward and Herbert to be prostitutes. Defendant had previously met 7- and 8-year-old prostitutes.
Defendant denied seeing Edward on the weekend prior to May 18, 1976. On May 18, at about 11:30 a.m., Edward and Herbert were standing outside defendant's apartment yelling his name. They asked to come in and defendant let them in. He had a movie projector set up and the boys brought up the subject of the movie. After watching the movie, defendant gave them tomato juice and donuts. As they sat in the front room the boys told defendant that if he was interested in having sex, they would be willing to mess around. Defendant told them he would give them $3 each and take them to Burger King. Edward and Herbert agreed and they went into the bedroom. The boys undressed themselves and they proceeded to participate in sexual acts with defendant.
Defendant denied forcing the boys into bed and also denied forcing their heads toward his penis. Defendant stated that every time Edward put his mouth to defendant's penis, he did so voluntarily. After they had sex, they dressed and left the apartment. They drove in defendant's truck to Burger King. Before getting out of the truck defendant paid Edward and Herbert $3 each. After lunch they went to the park and then defendant drove them to within three ...