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People v. Boyd

OPINION FILED AUGUST 20, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT L. BOYD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.

MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

The defendant, Robert L. Boyd, was charged by information with two counts of the offense of indecent liberties with a child. The misconduct charged in count I is an act of lewd fondling or touching (Ill. Rev. Stat. 1977, ch. 38, par. 11-4(a)(3)) and that charged in count II is an act of deviate sexual conduct (Ill. Rev. Stat. 1977, ch. 38, par. 11-4(a)(2)). After a jury trial, he was found guilty as charged on both counts; the court entered judgments of conviction and sentenced the defendant to a term of four years' imprisonment on each count, the sentences to be served concurrently. The defendant appeals.

H.T., the victim and complainant in this cause, was 10 years old at the time of the incident in question. She testified that the defendant was living at the T---- house, located in Rockford, with her mother, E.T., and the three T---- children. On the evening of May 2, 1979, the defendant picked her and her two brothers up from the baby-sitter's house and took them home. As she and her brothers were upstairs getting ready for bed, the defendant called her downstairs into the kitchen, where he proceeded to pull up her dress and started feeling her. H.T. began to cry, and the defendant then took his other hand and pulled down her pants and started to lick her genitalia with his tongue. After the incident the child went back upstairs.

R.T., the 12-year-old brother of the complaining witness, testified that the defendant picked the children up from the baby-sitter's on the evening in question. As the children were preparing to go to bed, the defendant called his sister downstairs. He heard the two of them talking and then heard his sister crying. After coming part of the way downstairs, he observed his sister with her dress pulled up and her pajama pants pulled down. R.T. further testified that he saw the defendant licking H.T. between her legs. The defendant noticed R.T. and told him to go back upstairs. R.T. responded that he was not going anywhere without his sister; H.T. then came over to R.T. and the two children went upstairs.

Rodney Rupp, a detective with the Winnebago County sheriff's police, testified that he called the defendant and asked him to come to his office in the Public Safety Building in Rockford. When the defendant arrived at the office on the afternoon of May 10, 1979, the first thing the detective did was to advise the defendant of his Miranda rights. Rupp asked the defendant if he understood his constitutional rights; the defendant advised the detective that he understood them, read and signed the waiver of rights form and acknowledged that he would talk to Rupp. Detective Rupp further testified that during their ensuing conversation the defendant acknowledged to him, apparently in response to questioning regarding the incident involving H.T. that he may have done it but that he had been drinking.

Nicholas Reiland, an employee of the State crime laboratory in Rockford, testified that he spoke with the defendant on May 10, 1979. He stated that he informed the defendant of his constitutional rights and the defendant responded that he understood them. Reiland then testified that he had a conversation with the defendant concerning an allegation that he had placed his mouth on the vagina of H.T. and that the defendant remarked that he could have done so but that he was drinking at the time and could not really remember.

The defendant testified that he had been engaged to marry H.T.'s mother and that the marriage was to have taken place on May 3, 1979, the day after the incident in question. He stated that he picked the children up from the baby-sitter's during the evening of May 2, 1979, and took them home. After arriving there, the defendant, the victim and her brother, R.T., were in the kitchen where the defendant, apparently in response to an incident in which H.T. was involved at school, asked the child how she would like to have her clothes pulled off. The defendant then testified that he pulled her pants down but did not otherwise touch the child.

The defendant also testified that he had a conversation with the complaining witness' mother, E.T., in the kitchen of her home on the morning after the alleged incident involving the young girl. He stated that the conversation centered around the defendant's failure to arrive on time for their marriage on May 3, 1979; that during this conversation the child's mother stabbed him in the side and arm and that he was hospitalized for two days. After several objections to the admission of this testimony were interposed by the State's Attorney on the ground that the testimony was not relevant to the matter presently before the court, the State requested that it be stricken from the record; the trial court granted the motion and struck the testimony.

On appeal, the defendant first asserts that count II of the information charging the offense of indecent liberties with a child, based on an act of deviate sexual conduct (Ill. Rev. Stat. 1977, ch. 38, par. 11-4(a)(2)), is void for failure to cite the correct statutory provision alleged to have been violated as required by section 111-3(a)(2) of the Criminal Code of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 111-3(a)(2)) and consequently his conviction on this count should be reversed.

The defendant asserts, correctly so, that count II of the information cited section 11-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11-2), the section defining deviate sexual conduct, as the statutory paragraph violated, rather than section 11-4 (Ill. Rev. Stat. 1977, ch. 38, par. 11-4), the statutory provision stating and defining the offense of indecent liberties with a child. This is the only insufficiency which the defendant points out in the charging instrument, and an examination of the information indicates that this is the only defect contained therein.

• 1 It is well established that reference in a charging instrument to an incorrect chapter or section of a statute, or both, is regarded as a formal rather than substantive defect (People v. Oswald (1979), 69 Ill. App.3d 524, 527; People v. Dismore (1975), 33 Ill. App.3d 495, 498; People v. Parr (1970), 130 Ill. App.2d 212, 219-20; People v. Gilmore (1968), 101 Ill. App.2d 447, 454), and a formal defect, such as an incorrect citation of the criminal statute violated, does not require or warrant reversal of a conviction unless the defendant was prejudiced by the miscitation (People v. Oswald (1979), 69 Ill. App.3d 524, 527; People v. Gray (1978), 61 Ill. App.3d 243, 246; People v. Dismore (1975), 33 Ill. App.3d 495, 498).

• 2 In the present case, the miswriting of the correct statutory provision was a formal rather than a substantive defect, whether labelled as a typographical error or a clerical oversight. (People v. Gilmore (1968), 101 Ill. App.2d 447, 454.) Furthermore, the defendant has not demonstrated any prejudice resulting from the isolated defect in the information. The language in the information sets forth the crime charged with sufficient specificity to apprise the defendant of the offense with which he was charged so that he could plead adjudication of this charge as a bar to future prosecution for the same conduct. (People v. Stamm (1979), 68 Ill. App.3d 177, 180; People v. Oswald (1979), 69 Ill. App.3d 524, 527; People v. Griffin (1974), 21 Ill. App.3d 261, 263.) Although the defendant was not perfectly charged in count II with the offense of indecent liberties with a child based on an act of deviate sexual conduct, he was properly charged. Since the defect here was not of a substantive nature, it did not invalidate the indictment and does not justify or require reversal of the defendant's conviction on count II of the information.

• 3 The defendant next contends that he was not proved guilty beyond a reasonable doubt of the offense of indecent liberties with a child. It is well settled in this State that where, as here, a conviction of the offense of taking indecent liberties with a child depends on the testimony of the complaining witness, and the defendant denies the charge, there must be substantial corroboration of her testimony, or the testimony must be otherwise clear and convincing. (People v. Morgan (1977), 69 Ill.2d 200, 206; People v. Kolden (1962), 25 Ill.2d 327, 329; People v. Gasner (1979), 79 Ill. App.3d 964, 973; People v. Voight (1979), 72 Ill. App.3d 472, 474; People v. Higgins (1979), 71 Ill. App.3d 683, 686.) But the testimony of a complaining witness in an indecent liberties case need not be crystal clear and perfect as far as memory is concerned in order for her testimony to be clear and convincing. (People v. Voight (1979), 72 Ill. App.3d 472, 475; see People v. Newbern (1974), 18 Ill. App.3d 532, 540.) Similarly, it is the rule that the issue of a witness' credibility in a prosecution for indecent liberties with a child is to be determined by the trier of fact (People v. Voight (1979), 72 Ill. App.3d 472, 475; People v. Newbern (1974), 18 Ill. App.3d 532, 540), and a court of review will disturb the jury's finding in such a case only when the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant's guilt (People v. Marchese (1975), 32 Ill. App.3d 872, 877; see People v. Gasner (1979), 79 Ill. App.3d 964, 973).

In light of the evidence in this case, any contention that the jury did not convict the defendant by proof beyond a reasonable doubt of the offense in question is without merit. The complaining witness' rendition of what occurred on the night in question was very straightforward, clear and convincing. The defendant's contention that the child's testimony was not clear and convincing due to a few lapses in memory is unfounded. (People v. Voight (1979), 72 Ill. App.3d 472, 475.) Furthermore, the victim's testimony was corroborated by that of her brother. We conclude that the State ...


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