APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
The defendant, Robert Cleveland, was charged by information with two counts of indecent liberties with a child. (Ill. Rev. Stat. 1975, ch. 38, pars. 11-4(a)(2), (a)(3).) The defendant was found guilty after a bench trial as to count two (Ill. Rev. Stat. 1975, ch. 38, par. 11-4(a)(2)), and sentenced to four years probation subject to the following conditions: (1) one-year periodic imprisonment, (2) a $2,000 fine, and (3) outpatient treatment. On appeal, the defendant argues (1) that the information failed to allege a mental state and therefore cannot support the conviction, (2) that the defendant was prejudiced by the admission into evidence of testimony and exhibits that relate to events outside the bill of particulars, and (3) that the evidence was insufficient to sustain a finding of the offense charged.
Michael Barrette, a witness and the brother of the complainant, Richard Barrette, was 14 years old at the time of trial. On direct examination, Michael testified that he lived several blocks from the defendant's apartment, which was located at 2440 Hamlin in Chicago. Michael also testified that he first met the defendant in December 1974, and that he visited the apartment many times with his brother, Richard.
On one such visit in the spring of 1975, Michael and Richard were in the defendant's apartment. Michael testified that as he was going to the bathroom, he passed the defendant's bedroom, and he saw the defendant with his mouth on Richard's penis and that he saw this same sexual contact between the defendant and his brother three or four times. The first time was in early spring of 1975 and the last time was in September 1975. Michael testified that the last time he came to the defendant's apartment was in September 1975. In addition, Michael identified People's exhibit Nos. 3a, a photograph of Richard taken in the defendant's apartment when Michael was present; 3b, a photograph of Richard in the defendant's bedroom; and 3c, a photograph of Richard, Michael and the defendant in the dining room of the defendant's apartment.
Richard Barrette, the complainant, was 10 years of age the first time he met the defendant in December 1974 with his brother Michael. Richard testified on direct examination that he visited the defendant's apartment 35 to 40 times from the winter of 1974 to the fall of 1975 and that Michael was with him 95 percent of the time.
In January 1975, Richard and Michael were in the defendant's apartment, and other boys were present, including Ralph Goldberg, Vincent Phillips, and two brothers named Mike and Bobby. On this occasion, Richard testified that the defendant talked to the boys about sex and that the defendant said that sex between boys was natural and felt good. Richard stated that afterwards he and the defendant went into the defendant's bedroom where the defendant took books out of his dresser drawer. Richard testified the books depicted naked boys and girls. There were also movie reels in the defendant's bedroom, but the movies were not shown to Richard at this time. Richard testified that while he and the defendant were in the bedroom, the defendant sat at the edge of the bed and started talking to Richard about sex, and that the defendant masturbated Richard and then himself.
Richard also testified that he returned to the apartment again in January 1975, and at that time the defendant talked to him about sex. Richard stated that afterwards he and the defendant went into the defendant's bedroom, and while there Richard looked at books similar to the ones he had previously seen in the defendant's bedroom. Richard further testified that he and the defendant undressed and got into bed, and that the defendant had sex with him.
Richard stated that he usually went to the defendant's apartment on weekends and that he and the defendant engaged in the same sexual contact 10 or 20 times. This contact occurred in the defendant's bedroom and continued from late winter or early spring of 1975 until October 1975. Richard testified that in the late winter of 1975 a movie projector was set up by the defendant in the defendant's bedroom for Richard to view movies. Richard testified that the movies depicted naked boys playing with each other and other films showing a man with a lady and a father with a girl. Richard stated that when he viewed the films he would lie on the defendant's bed and that the defendant would engage in sex with him. The same sexual contact occurred in the spring of 1975 when Michael was in the defendant's apartment, but not in the same room as Richard and the defendant.
The last time Richard and the defendant had sexual contact was in October 1975, and the other boys were present, including Ralph Goldberg, Vincent Phillips, and Bobby. Richard also testified that the last time he saw the defendant was around Thanksgiving, at which time the defendant asked Richard why he stopped coming to the apartment. The next day Richard told his parents what occurred between him and the defendant.
Richard identified People's exhibits Nos. 3a, 3b, and 3c as photographs taken in the defendant's apartment. Richard also identified People's exhibits Nos. 4a, 4c, 4d, 4e as the films he viewed in the defendant's apartment.
On cross-examination, Richard testified that he had estimated October 11, 1975, as the last time he was in the defendant's apartment. He stated that his mother and brother suggested the date and that he did not know if he was in the apartment October 11, 1975. He also stated that he talked to the State's Attorney prior to testifying and that he was not given anything to read, nor did the State's Attorney question him about the preliminary hearing which was held two years earlier. The defense counsel read Richard's testimony from the preliminary hearing, at which time Richard was asked if on October 11, 1975, he had an occasion to go to the Hamlin address, and Richard answered in the affirmative.
On redirect, Richard admitted he read the preliminary hearing testimony. Richard further stated that the reason he did not tell his mother about the defendant before Thanksgiving was because he was confused. On recross, Richard stated that he did not know if his conduct with the defendant was right or wrong or what would happen if he told his parents. Richard testified that he decided to tell his parents after he saw the defendant Thanksgiving night, and that five weeks had elapsed between the last time he was in the defendant's apartment and Thanksgiving.
On further redirect, Richard testified that he was not confused as to what happened but confused as to whether his conduct was right or wrong. On further recross, Richard testified that he was not confused as to the date he was last in the defendant's apartment. He stated that the time he was in the defendant's apartment was before his aunt came to visit, which was just after October 11, 1975, and that his aunt visited for a weekend.
The defendant was approximately 51 years old at the time of trial. On direct examination the defendant testified that he met Michael while attending church during the first part of December 1974, and that on the way home from church he introduced Michael to Vincent Phillips and Ralph Goldberg. The defendant testified that he left for a vacation in Denmark the 16th or 19th of December 1974, and returned the 11th or 12th of January 1975. The defendant stated that after he returned from Denmark, Michael came to his apartment in January 1975. The defendant further testified that Richard and Michael came together three or four times, ...