APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant was charged with indecent liberties with a child (Ill. Rev. Stat. 1977, ch. 38, par. 11-4) and attempted aggravated incest (Ill. Rev. Stat. 1977, ch. 38, par. 8-4). Following a jury trial, defendant was convicted of indecent liberties with a child and acquitted of attempted aggravated incest and was sentenced to six years in the penitentiary.
On appeal, he raises five issues: (1) the trial court erred in allowing the use of his prior conviction for impeachment purposes; (2) he was denied his constitutional right to the equal protection of the laws when he was more severely sentenced for the convicted crime than he could have been sentenced for the more serious crime for which he was acquitted; (3) the trial court erred in refusing a defense instruction on contributing to the sexual delinquency of a child; (4) he was deprived of a fair trial by prejudicial arguments made by the prosecution; and (5) his sentence is excessive.
On April 5, 1978, at about 4 p.m., the female child, eight years old, and her mother, Mary White, met with Sergeant James Holous at the Hodgkins, Illinois, police department. White informed Holous that defendant had attempted to rape her step-daughter, and had fondled her vaginal area. Later, Holous and White took the child to the hospital to be checked for evidence of rape. Before they received the results of the hospital tests, the three returned to the police department and conversed with Assistant State's Attorney Paul Kelly. Holous and Kelly then went to the apartment where defendant, the child and White resided. According to Holous, defendant told him the following:
"He was home watching television and the child came home from school, she went into the bathroom to change, she came back out into the living room naked, and he told her to go back into the bathroom. At that time, he said he went into the bedroom, got a jar of vaseline, came back into the bathroom, told the child to lay down on the ground, then he proceeded to rub vaseline between her legs by her vaginal area, and that he began to fondle her with his finger, and he said he * * * unzipped his pants, pulled his penis out, laid on top of her and began to rub his penis in her vaginal area."
Defendant also told Holous that while he was on top of his step-daughter, his wife came home and "caught" them.
Defendant was placed under arrest at the apartment at about 10:30 p.m. Later that evening at the police station, defendant repeated his earlier statement. He also gave his handwritten version of the incident, which read:
"I was home watching T.V. when the child came home. I told her to [change] clothes. She went in the bedroom and took her pants off and came back in the living room with nothing on, then went in the bathroom and left the door open. I went in and felt her privates, and then her mother came home."
Doctor Christopher Curran, an expert in obstetrics and gynecology, testified as to his examination of Smith on April 5, 1978. A general examination of the girl revealed evidence of hyperemia, described as "a red appearance of the skin in the area surrounding the vaginal opening." The redness was the result of a "relatively recent trauma," which was at most six to eight hours old and was caused by some type of rubbing action. On cross-examination, he admitted that the injury could have been caused by a number of things including motions brought about by the riding of a bicycle. There were no contusions, lacerations or abrasions found on the girl that evening.
The child testified that on the evening of April 5, 1978, she was at home with her sister, grandmother and defendant. Her mother was at the laundromat. While she was in the washroom washing her hands, defendant came into the room. He took her pants off, opened his "fly," and put Vaseline on himself and on her. As she lay on the floor, defendant got on top of her and then, according to her testimony, "He stuck it in me." Her mother then arrived, picked up the jar of Vaseline, threw it, and took her to the police station and later to the hospital.
On cross-examination, the following colloquy occurred between the child and defense counsel:
"DEFENSE COUNSEL: Bob [defendant] has never hurt you, has he?
DEFENSE COUNSEL: Bob has never made you cry, has he?
DEFENSE COUNSEL: Bob didn't do anything to you in the bathroom, did he?
The defense presented two witnesses as to the child's reputation for veracity and habits of masturbation. Their testimony indicated that she had a bad reputation for truthfulness and that she had been seen masturbating on various occasions after the incident with defendant.
Mary White then testified that on April 5, 1978, at about 3 p.m., she came home from the laundromat, went into the bathroom, and found her daughter sitting on the toilet and defendant standing near the wash basin, about five feet from her daughter. At that point she "went to pieces," grabbed the girl and went to the police station.
On cross-examination, she acknowledged that in an earlier written statement to the police, she stated that she saw defendant zip his pants up as she arrived, and told him: "What are you trying to do to my daughter, trying to rape her?" He told her, "I don't know." She also stated that she "still" loved her husband. When asked whether she would allow defendant to resume his former relationship with her children, she stated, "Well, I'll have to think about it because my kids are my concern, I love my kids."
Defendant testified on his own behalf. On the afternoon of April 5, 1978, his daughter came out of the bathroom without her clothes on, and he told her to return and put them on. When he went into the bathroom, she was lying on the floor undressed. He noticed that she was red "in her private parts," so he put Vaseline on her, but denied doing it for sexual gratification. He also denied putting Vaseline on himself or touching her with his penis. While he was washing his hands at the wash basin, she got up and sat on the toilet. Then, his wife arrived. After his wife and daughter left, defendant "went back to watching television."
Defendant's first contention is that the trial court erred in admitting his 1970 West Virginia conviction for buying and receiving stolen property into evidence. Briefly, defendant asserts that it was an abuse of discretion to allow this into evidence in that it did not involve misrepresentation to other people, it was nearly 10 years old, and that defendant had no subsequent criminal activity.
In People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, our supreme court set forth the standards to be used in governing the admissibility of prior convictions for the limited purpose of impeachment. Those standards dictate that evidence of a prior crime may be introduced if: (1) the crime was punishable by death or imprisonment in excess of one year under the law under which defendant was convicted, or (2) the crime involved dishonesty or false statement regardless of the punishment; unless, in either case the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. Attached to these standards is the provision that evidence of a conviction is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date. Montgomery, 47 Ill.2d 510, 516, 268 N.E.2d 695, 698.
Defendant does not dispute that the offense in question is punishable by imprisonment in excess of one year under West Virginia law, or that it falls within the 10 year time limit of Montgomery. However, he does contend that since the crime involves no misrepresentation to others it is only marginally probative as to his honesty.
1, 2 We recognize that a conviction for theft, of whatever type, is admissible to impeach the credibility of a witness. (People v. Spates (1979), 77 Ill.2d 193, 395 N.E.2d 568.) The crime of buying and receiving stolen property falls within the broad boundaries of the crime of theft. Moreover, it has been held that a defendant's prior misdemeanor conviction for receiving stolen property is admissible because the nature of the offense involves dishonesty. (People v. Barnett (1975), 34 Ill. App.3d 174, 340 N.E.2d 116.) Consequently, it cannot be said that defendant's prior conviction was not probative as to aiding the jury in evaluating defendant's truthfulness.
Accordingly, the trial court did not abuse its discretion in denying defendant's motion in limine to bar the ...